Rippey v. State

• Decision Date: 21 June 1890
• Citation: 14 S.W. 448
• Parties: RIPPEY v. STATE.
• Court: Texas Court of Appeals

14 S.W. 448

RIPPEY v. STATE.

Court of Appeals of Texas.

June 21, 1890.

Appeal from district court, Hopkins county; E. W. TERHUNE, Judge.

Defendant was found guilty of an assault with intent to commit murder, and sentenced to three years in the penitentiary. McGill, the prosecuting witness, was called to his door, and shot by some one near the gate in front of the door. The identity of the defendant as the assailant is the question at issue. The man who fired the shot wore a white hat with a broad and flapping rim, and a dark-colored coat that was torn on the side where the pocket should be. Defendant was found wearing such a hat and coat on the next morning. Foot tracks leading from the gate to where a horse had been hitched were found to correspond in size and shape with defendant's feet. The tracks of the horse thence to the house of Barker were found to correspond in size and shape with the hoofs of a horse found in Barker's yard. Defendant was staying and was arrested at Barker's house. Alibi was the defense relied upon. Barker testified that defendant went to bed about 12 o'clock; that he, witness, went to bed in the same room, at the same time; that, after sleeping some time, he, witness, woke up, and stepped to the front gallery; that on his return to the room the defendant, then in bed, asked him if it was still raining, and then went to sleep again, and slept throughout the night. He denied that he testified before the grand jury, in effect, that he and defendant retired at 12 o'clock, and that he saw and knew nothing more of defendant until next morning. Mrs. Barker corroborated her husband, and stated that it was about 10 minutes to 3 o'clock when her husband got out of bed, and was asked by the defendant if it had quit raining. She further declared that she was an exceedingly light sleeper, and that defendant could not have left the room after retiring without her knowing it. She denied that, in her testimony before the grand jury, she stated that nobody, or that her husband, got up and went out of the room on that night after retiring. Two members of the grand jury which presented this bill of indictment, testifying for the state as impeaching witnesses, stated that Jim Barker testified before the grand jury that he did not see or hear or know anything of the defendant after he went to bed on the night of the shooting. Mrs. Barker was then recalled by the grand jury, and, in reply to a direct question, testified that her husband did not get out of bed nor leave the room after retiring, on the night of the shooting of McGill. Two or more witnesses for the defense testified that at night, recently before this trial, they were called upon to observe the defendant attitudinize in the moonlight, the purpose of such observation being to determine whether they could distinguish a rent in a coat worn by him at the distance of 40 feet. The several witnesses agreed that they could not see such a rent as that described by the prosecuting witness, though they particularly looked for it, at a greater distance than 15 feet. Testifying in his own behalf, the defendant declared that he did not leave Barker's house on the night of the shooting after he returned from the debate. That he did not know McGill. Did not know where McGill lived. That he had no shotgun, and did not shoot McGill. He explained that his saddle and coat got wet by being left out of doors, and exposed to the rain, over night, and that he got his boots muddy by walking into the field, and to the well, on the morning after the shooting, before his arrest.

E. B. Perkins and Harris & Blocker, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

1. When the trial was about to begin, and after the jury had been impaneled, it was discovered that the clerk had neglected to indorse his file mark on the indictment. The district attorney moved the court to have the clerk to make the proper file mark indorsement upon it, and this was done by order of the court, over objection of defendant, as shown by his first bill of exceptions. The ruling of the court was correct. Caldwell v. State, 5 Tex. 18; Willson, Crim. St. §§ 1942, 1943.

2. On the first day of the trial, seven men were selected as jurors, and the court was adjourned until the next morning to enable the sheriff to procure talesmen from the country. As a matter of precaution the court had the regular jury oath administered to these seven jurors, who had been passed upon and selected by the parties, and they were then placed in charge of an officer. On the next morning, one of these seven men was found to be so ill as to be unable to sit as a juror, and the court, without the defendant's consent, discharged him. Defendant's counsel then moved the court to discharge the jury, that is, the other six jurors, and continue the case, which motion was overruled, and the jury filled out with the talesmen who had been summoned. Defendant, in his third bill of exceptions, states, in connection with this matter, that he exhausted his challenges, and was compelled to take jurors who were not of his choice, but he states no reason why they were objectionable to him or why they were not fair and impartial jurors. The objection to this proceeding is that after a person has once been sworn as a juror in a case he cannot be excused or discharged by the court unless the whole jury is also discharged. This is the rule in capital cases, it being required in such cases that, as each juror is selected, he shall be sworn as a juror to try the case. In other words, each juror selected is impaneled, (Code Crim. Proc. art. 642; Willson, Crim. St. § 2290;) and the court has no authority to...