Osborne v. State

• Decision Date: 01 June 1887
• Parties: OSBORNE v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

5 S.W. 251

OSBORNE v. STATE.¹

Court of Appeals of Texas.

June 1, 1887.

Appeal from district court, Colorado county.

The conviction was in the first degree for the murder of West Kirby, and the death penalty was assessed by the jury. The opinion of the court discloses the facts relevant to the rulings.

John C. Mitchell and Y. H. Burts, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

This appeal is from a conviction of murder in the first degree, the penalty of death being assessed by the judgment in the court below.

On the trial, after defendant's application for a continuance had been overruled and both parties had announced ready for trial upon the merits, a jury having been selected, impaneled, and sworn, but before the defendant had been arraigned or pleaded to the indictment, the district attorney moved the court, in writing, for leave to amend the caption of the indictment with regard to the time at which the term of the district court was being held when the indictment was found; the amendment being to substitute "fourth Monday" for the words "first Monday," where the latter appeared in said indictment. Defendant objected to said amendment, but the objection was overruled by the court and the amendment permitted, the defendant saving his bill of exception to the ruling. With regard to amendments of indictments, it is provided by statute that, when the exception to an indictment or information is merely on account of form, the same shall be amended if decided to be defective, and the cause proceed upon such amended indictment or information. And any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits, of both parties, but not afterwards. Code Crim. Proc. arts. 549, 550. An allegation as to the court and term of court in which the indictment is presented, is a matter of form and amendable. Bosshard v. State, 25 Tex. 207; Mathews v. State, 44 Tex. 376; Hauck v. State, 1 Tex. App. 357; Long v. State, Id. 466; Sharp v. State, 6 Tex. App. 650.

At the time these decisions were made, article 550, above quoted, had not been adopted. Under that article it will be seen that the right to amend as to matters of form is limited to "any time before an announcement of ready for trial upon the merits by both parties, but not afterwards." Having announced ready for trial upon the merits, the allowance of amendment by the court in this case was clearly erroneous, and in contravention of the statute; and the fact that defendant had neither been arraigned nor pleaded to the indictment could not possibly affect the question, the parties having previously announced ready for trial upon the merits. Such irregularity and error, however, no exception having been made by the defendant to the indictment, being a mere formal defect, may well be considered as having been cured by the verdict subsequently rendered, and should not amount to reversible error.

By appellant's second bill of exceptions it is made to appear that, when the court was proceeding to organize the jury from the special venire which had been summoned in this case, the name of Jack Craige stood as the eighth upon the list. His name being called and he not answering, the sheriff announced to the court that, though the said name appeared in his return as one of the special venire men who had been summoned, the said return was a mistake, the said juryman Craige never having been summoned, as stated in said return; whereupon the court, over objections of defendant, proceeded to organize said jury from the remainder of said special venire, and from talesmen subsequently ordered and summoned.

Appellant's objection to this proceeding was that the juryman Jack Craige appeared as one of the persons summoned under the special venire facias, a copy of which was served upon him; that the said juryman's was one of the names specially drawn to serve upon the venire in the cause; and that the sheriff's return on the venire did not show the diligence exercised by the sheriff to summon, or the cause, if any, that he was not summoned; that, on the contrary, the said return and service upon this defendant shows said juryman to have been summoned, when in truth and in fact it appears that he had not been summoned at all; and defendant claimed that his rights would be prejudiced by proceeding without said juryman Craige.

It is provided by statute that "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," etc. Code Crim. Proc. art. 617. In the early case of Bates v. State it was said: "The law gives the accused the right of having a list of the jurors summoned upon the special venire served upon him at least one day before the trial is commenced. The object is to enable him the better to exercise his right of challenge. It is a valuable right which is not to be denied the accused. It is true, it may be defeated, in whole or in part, by the nonattendance of the jurors, and doubtless, after their attendance, the court may excuse one or more of them for cause. But it will be readily admitted that the cause which would excuse ought not to be occasioned...