Pena v. State, 12111.
| Decision Date | 18 June 1930 |
| Docket Number | No. 12111.,12111. |
| Citation | 29 S.W.2d 785 |
| Parties | PENA v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Bee County; T. M. Cox, Judge.
On second motion for rehearing.
Former opinion set aside, and cause reversed and remanded.
For former opinion, see 24 S.W.(2d) 396.
Sid B. Malone, of Beeville, for appellant.
A. A. Dawson, State's Atty., of Austin, for the State.
After the district attorney had completed his examination of the jury panel, and before the appellant began his examination, his counsel made a request of the court that the jurors be retired and arrangement be made whereby he could make an examination separately of each of the jurors. The motion was denied, and the examination of the jurors was made by counsel for the appellant while the whole panel was present. During his examination a number of statements made were regarded by counsel as prejudicial to his client and his case. One of the veniremen stated that he had gotten the impression that the appellant was a bootlegger, and understood that there were eight indictments pending against him. Another said that he had heard much about the accused, and had the impression that his reputation was bad; that he had a fixed opinion that the appellant was a bootlegger. Another stated that he had heard that the appellant was a bootlegger, and that he received this information partly from the appellant's counsel, who, at the time he made the statement, was district attorney. Each of the jurors was challenged for cause and the challenges overruled. They were excused by the accused upon peremptory challenges. In qualifying the bill, the court states that the jurors said they would disregard their opinions, and states that the fact that the jurors had heard the appellant was a bootlegger and regarded as a bootlegger was drawn out on voir dire examination by the appellant's counsel.
From another bill, it appears that the district judge stated from the bench in the presence of the jury panel that he was calling the cases against Augustine Pena, alias Archie Parr, and in reply to an inquiry by the district attorney, the court said that there were nine cases against the appellant.
From bill of exceptions No. 20, it appears that the appellant excepted to the charge upon the ground:
"That said charge wholly fails to in effect instruct the jury that the fact that other indictments may have been returned against this defendant shall in no manner be taken into consideration or used by them as a circumstance against this defendant in determining whether he is guilty, and in said exception defendant set forth that upon the call of this case in the presence and hearing of the regular jury, from which the jurors who tried this case were selected, the District Attorney and court in effect advised said jurors that other indictments were pending against this defendant, while the defendant's reputation was in no manner put in issue by the evidence in this case."
The selection of a jury in a felony case less than capital is controlled by chapter 4, title 8, C. C. P. In article 636 of that chapter is the provision, according to the accused, of the right to...
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...Hernandez v. State, 506 S.W.2d 884 (Tex.Cr.App.1974); Weaver v. State, 476 S.W.2d 326 (Tex.Cr.App.1972); Pena v. State, 114 Tex.Cr.R. 29, 29 S.W.2d 785 (1930), and that only abuse of such discretion will call for correction on appeal. Battie v. State, 551 S.W.2d 401 (Tex.Cr.App.1977); Smith......
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