Obenchain v. State

• Decision Date: 26 February 1896
• Citation: 34 S.W. 278
• Parties: OBENCHAIN v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 278

OBENCHAIN v. STATE.

Court of Criminal Appeals of Texas.

February 26, 1896.

Appeal from Parker county court; J. L. L. McCall, Judge.

Charley Obenchain was convicted of playing at a game of cards in a public place, and appeals. Reversed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of playing at a game with cards in a public place, and fined $10, and appeals.

It appears, from appellant's bill of exception, that, on the trial of this case, the jury, which had just tried and convicted one Mat Sisk for playing at the same game with cards as this appellant, was, together with others on the regular jury list, tendered to this appellant. Appellant objected to them, on the ground that they had tried another party for playing at the same game with this appellant, and had formed opinions in the case which would influence them in finding their verdict. The court, in explanation to said bill, states that two of said jurors answered that they had formed opinions in the case if the facts were the same as in the Sisk Case (34 S. W. 277), and they thought they would be influenced thereby, and the court discharged the said two jurors. The other four jurors stated that they would not be influenced in the trial of this case by their opinion in the Sisk Case. The court overruled appellant's objection, and compelled him to pass on said jurors. Appellant, in making his challenges, exhausted all of them, and was compelled to take two of said jurors, who had tried the Sisk Case, on the jury to try him in this case. Our statute on this subject (Code Cr. Proc. art. 636, subd. 13) provides, as one of the grounds for a challenge for cause, to wit: "(13) That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant, as will influence him in his action in finding a verdict. For the purpose of ascertaining whether this cause of challenge exists, the juror shall be first asked whether, in his opinion, the conclusion so established will influence his verdict. If he answer in the affirmative, he shall be discharged; if he answer in the negative, he shall be further examined by the court, or under its sanction, as to how his conclusion was formed and the extent to which it will affect his action, and if it appears to have been formed from reading newspaper accounts, communications, statements or reports, or from mere rumor or hearsay, and the juror states on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case; but if the court, in its discretion, is not satisfied that he is impartial, the juror shall be discharged.

It will be observed, from the foregoing, where the juror states he has formed an opinion, and that it...