Rice v. State

• Decision Date: 06 November 1907
• Citation: 112 S.W. 299
• Parties: RICE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 299

112 S.W. 299

RICE v. STATE.

Court of Criminal Appeals of Texas.

November 6, 1907.

On Rehearing, May 13, 1908.

Appeal from District Court, Hill County; W. C. Wear, Judge.

D. R. Rice was convicted of murder in the first degree, and he appeals. Affirmed.

See 94 S. W. 1024.

Odell & Johnson, Ramsey & Odell, and Hughes & Cummings, for appellant. F. J. McCord, Asst. Atty. Gen., Cleveland & Haynes, W. Poindexter, W. E. Spell, and Morrow & Smithdeal, for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at lifetime imprisonment in the penitentiary. The former appeal of this case will be found in 94 S. W. 1024, 16 Tex. Ct. Rep. 396.

Appellant's bill of exceptions No. 1 complains of error of the court in refusing to quash the venire. The facts in said bill are: A venire was drawn according to the statute of this state. There were seven jury weeks of the term of court at which this venire was drawn, and 30 men were drawn for each week, aggregating 210 men. There were three special venire cases on the docket—this one, State v. Harris, and State v. Watson. On the 9th of January the court made an order requiring a special venire in each case, and set the day for the trial of each. It had been previously agreed that the Rice case should be set for the 4th of February, but the court made no order on the docket to that effect; but on the 9th day of January he did make the order and set the other cases for the 28th and 30th of January, respectively. The district clerk, in drawing the venire, drew that for the Rice case first, and drew it from 210 names on the lists of regular jurors. After the venire in this case was drawn by the clerk, the writ was made out and signed by him; one of the attorneys for the state assisting the clerk in checking off the list with the list of jurors from which it was drawn. Of this appellant seriously complains; but we do not think there was any error in this. There is no allegation of fraud, nor insistence that anything was done irregularly; but the complaint seems to be based purely upon the fact that this apprised the state's attorney of who constituted the venire before appellant's counsel knew same. After the venire list was drawn up, as indicated above, it was subject to the inspection at the instance of any one to whom the sheriff might see fit to show it, and the fact that one of the state's counsel assisted in checking the jurors would not be a ground for quashing the venire.

The motion complains, further, of the failure of the court to serve L. J. Garner and Bill Tatum, Sr. Both of these jurors were subsequently brought into the court and tendered to the defendant, and were peremptorily challenged by the state. The state's challenge of the jurors certainly rendered any irregularity in their service harmless. See Miller v. State (Tex. Cr. App.) 83 S. W. 393.

The motion complains, further, of the failure of the court to quash same because the return of the sheriff fails to show diligence with reference to the jurors Sanders, Roach, Sheets, Blunt, Cruse, Taylor, Bailey, Henderson, Helton, Bankston, and Chapman. The sheriff's amended return shows that said jurors were not found in Hill county after diligent search, except the juror Sheets, who had in fact been served and was in attendance upon the court, and whose name had been omitted from the return by mistake. The bill shows that the state subsequently challenged Sheets peremptorily. The sheriff and his deputies testified before the court, giving the details of the efforts made to find the other jurors. Their testimony shows that some of these jurors were out of the state; that none were omitted purposely; that the sheriff and his deputies had carried a list of the jurors throughout the county, making inquiries for them in the neighborhood where they were supposed to live. After a very careful reading of the matter above complained of, we do not think there was any error in the ruling of the court. For a discussion of similar matters, see Spencer v. State (Tex. Cr. App.) 90 S. W. 639, and Starr v. State (Tex. Cr. App.) 86 S. W. 1023.

In bills Nos. 2 and 3 appellant complains of the ruling of the court in the following: W. C. Morrow, an attorney practicing at the bar, was asked "if it was not the custom and habit of the sheriff's office in Hill county, Texas, to prepare copies of venire and show them to counsel for the defendant before the said venire had been served and returned by the sheriff, and as to whether the sheriff's office had extended such favors in other cases to the said W. C. Morrow." To which question he answered that "such was the custom, and such favors had frequently been extended to him in other cases." Appellant objects to the testimony, on the ground that any custom that might exist which was unknown to the defendant and his counsel could in no sense be binding upon him. The bill shows that this question and answer did not occur in the presence of the jury. We do not think that the testimony threw any light on the legal question involved in appellant's bill, but it certainly was harmless in any view.

R. E. Sparkman, clerk of the court, after being sworn, was asked to explain why the venire in this case was drawn from the list of jurors for the week, instead of from the special venire list, and why said venire was drawn in this case before the venire was drawn in the case of State v. Hence Watson, which was set for the 28th of January, and the case of State v. Leggett, which was set for the 30th day of January, 1907. The court explained that at the previous term of the court it made an order that this cause be set for trial on the 4th day of February. Appellant objected to said statement on the ground that, if an order was made, to have any force and legal effect it must have been in writing and of record, and that the record would be the best evidence, and on the further ground that there was no order of record, and that a verbal order could not have any legal force, and that, if said order had been made, would not authorize the clerk to draw the venire in this case from the list of jurors for the week, instead of from the list of special venire, as it would have been drawn if the clerk had followed the law with reference to drawing venires. The bill is also approved with the statement that this testimony was introduced in the absence of the jury. We know of no law that guarantees to this appellant the right to have his venire drawn first or last, or at any particular time, when there are two other murder cases demanding a venire. The law says that, when the clerk in drawing the venire exhausts the regular venire, then he must go to the special venire provided by law. There certainly is no error in the ruling of the court.

Bill of exceptions No. 4 shows that E. Sheets, one of the jurors mentioned above, was peremptorily challenged by the state. The defendant previous to the peremptory challenge complained of the irregularity of his summons. This certainly cures any possible error in the summoning of said Sheets.

Bills of exception Nos. 8, 10, and 12 complain of the following matters: "R. M. Hood, in reference to his qualifications to serve as a juror, answered as follows appellant's questions: `Q. Would you require the doubt in your mind to be very strong before you would acquit, or would you acquit him if you had a reasonable doubt? A. I would have to have a mighty reasonable doubt. Q. Would you require defendant to prove that he did not kill her? A. Yes, sir. Q. I mean to say, that after the state has rested, if the state had succeeded in conveying an impression to your mind that the defendant is guilty, then under all the explanation that I have given you, would you require the defendant to establish in your mind that he is innocent, or would you only require of him to introduce evidence that would raise a reasonable doubt in your mind as to whether he was or not? A. I would require him to show evidence that he was not guilty.' That the explanations referred to in the preceding questions were made by the court to the juror before said questions were propounded and answers made, which explanation was `that the defendant was presumed to be innocent until his guilt was established beyond a reasonable doubt, and that the defendant was in no event required to prove his innocence; but, if the evidence should raise a reasonable doubt in the juror's mind as to whether the defendant was guilty or innocent, he would give the defendant the benefit of the doubt and acquit him.' Thereafter the following questions were asked by appellant: `And if the state had satisfied you that he was guilty, bearing in mind all the explanations stated, that the defendant is not required to prove his innocence after the state has proved he was guilty, you would never turn the defendant aloose until he had proved himself innocent? A. Yes, sir. Q. The mere fact that he would raise a reasonable doubt in your mind as to whether he was guilty or not, you would require more of him than that to prove that he is innocent? A. Yes, sir.' Thereupon the court propounded the following questions to said juror Hood: `Q. The law is, if you have a reasonable doubt as to his guilt, you would turn him aloose. A. Yes, sir. Q. Would that instruction, if you got in the jury box and hear all the evidence that is admitted before you, take the charge of the court, and give the defendant a fair and impartial trial, and give him the benefit of the doubt all the way through? A. Yes, sir.' Thereupon the defendant challenged peremptorily said juror." The defendant exhausted his peremptory challenges before the jury was selected. The juror Beckham, being the last juror selected, was taken after appellant had exhausted his challenges. The court states, in explanation, that appellant excepted to the juror Beckham without objection, and did not call the court's attention to any objection to him....