Ollora v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Ramsey
• Citation: Ollora v. State, 131 S.W. 570, 60 Tex. Cr. R. 217 (Tex. Crim. App. 1910)
• Decision Date: 26 October 1910
• Parties: OLLORA v. STATE.

131 S.W. 570

OLLORA v. STATE.

Court of Criminal Appeals of Texas.

October 26, 1910.

Appeal from District Court, Hays County; L. W. Moore, Judge.

Pablo Ollora was convicted of murder in the second degree, and he appeals. Reversed and remanded.

T. C. Johnson, Jr., for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

In the district court of Hays county, on March 17th of this year, appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a period of 25 years.

The record comes to us without a statement of facts. There is one bill of exceptions in the record, which presents, however, a question upon which we think the judgment must be reversed. By this bill it is made to appear that appellant was arrested and placed in jail on February 27th of this year, charged with the killing of one O. Felan, and upon examining trial he was remanded to jail without bond, and that soon thereafter an indictment was returned against him by the grand jury of Hays county, and the cause set for trial on March 16th; that from the date of his arrest on such charge, up to and including his trial, he had remained continuously in jail and in the custody of the officers, and had never at any time waived service of a copy of the list of jurors summoned under the special venire facias issued in said cause; that he was arraigned for trial on such charge on March 16th, and that after the state had announced ready for trial, appellant, through his counsel appointed by the court, moved to quash the special venire and service of a copy thereof on him on the ground, first, that the writ commanding the sheriff to deliver a certified copy of the list of jurors summoned under the special venire facias did not bear the seal of the court from which it issued as required by law, and that said writ did not bear the file mark of the district clerk—appellant contending that service of said list under such writ was not in compliance with the statutory provision entitling a person in custody, charged with a capital offense, to service of a copy of the list of jurors summoned one day before he could be brought to trial. These facts were shown, and there seems to be no question made in reference to them. The motion was overruled, and appellant was not at any time in fact served with a copy of the list of jurors, other than the copy served under the writ complained of. This bill is allowed, with the following qualification: "That the writ complained of, so issued by the clerk, was in due form, save and except that it did not bear the seal of the clerk, which had been omitted, and which the court thereupon ordered amended by the clerk, and the seal of said clerk and file mark affixed thereto."

Article 653 of the Code of Criminal Procedure is as follows: "The clerk, immediately upon receiving the list of names of persons summoned under a special venire, shall make a certified copy thereof and issue a writ commanding the sheriff to deliver such certified copy to the defendant, and such sheriff shall immediately deliver such copy to the defendant and return the writ, indorsing thereon the manner and time of its execution." Article 654 of the Code of Criminal Procedure is to this effect: "No defendant in a capital case shall be brought to trial until he has had one day's service of a copy of the names of persons summoned under a special venire facias, except where he waives the right or is on bail; and when such defendant is on bail he shall not be brought to trial until after one day from the time the list of persons so summoned shall have been returned to the clerk of the court in which said prosecution is pending; but the clerk shall furnish the defendant, or his counsel, a list of the persons so summoned, upon their application therefor." Article 1447 of our Revised Civil Statutes is as follows: "The style of all writs and processes shall be `The State of Texas,' and unless otherwise specially provided by law every such writ and process shall be directed to the clerk or any constable of the proper county; shall be made returnable on the first day of the next term of the court after issuance thereof; and shall be dated and attested by the clerk of the court with the seal of the court impressed thereon and the date of issuance shall be noted on the same."

In the case of Frosch v. Schlumpf, 2 Tex. 423, 47 Am. Dec. 655, it was held that process calling upon a party to answer, without being authenticated by the solemnity of a seal, gives no validity to a summons, and may be disregarded. This case has been approved in Chambers v. Chapman, 32 Tex. 570; Hale v. Gee (Civ. App.) 29 S. W. 44; Carson Bros. v....