Ross v. State

• Decision Date: 11 March 1908
• Parties: ROSS v. STATE.
• Court: Texas Court of Criminal Appeals

109 S.W. 153

ROSS v. STATE.

Court of Criminal Appeals of Texas.

March 11, 1908.

Appeal from Montague County Court; Geo. S. March, Judge.

Frank Ross was convicted of violating the local option law, and appeals. Reversed and remanded.

Jas. A. Graham, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted for violating the local option law. Many of the questions in this case have been decided adversely to appellant during this term of the court, and therefore will not be revised.

The witnesses Leonard and Pryor were introduced by the appellant. On their cross-examination the state was permitted to prove by them that they each kept some whisky in a room or place at Bowie, in Montague county, which the state's counsel termed in his question a "clubroom," prior to the time said room was closed under a search warrant and the contents thereof taken by the sheriff. The same objections were urged in the companion case, No. 4,036, Ross v. State (decided Dallas term) 109 S. W. 152; and for the reasons there given we think this was error. Upon another trial evidence of this character should not be permitted.

A bill of exceptions, which is supported by the facts incorporated in the record, shows that appellant was required to go to trial before a jury selected from the panel he moved to quash. Insistence is made that the jury was prejudicial to the rights of defendant, in that the evidence showed six of the jurors in the panel had just tried him in another cause, in which he testified to his innocence, while the prosecuting witness in the case testified that he (appellant) was guilty, and the other six jurors in said panel had heard the evidence in the other case, and had reached the conclusion as to the guilt or innocence of defendant, and, as this case would rest, as to the question of guilt or innocence, alone upon the testimony of the prosecuting witness and the defendant, that the jurors in the panel were necessarily disqualified. Appellant was compelled to go to trial before a jury selected from said panel. He exhausted his three peremptory challenges on three of the jurors who had convicted him in the other case, and three jurors, who had convicted him in the other case, were members of this jury that tried him. The agreed facts show that six of said panel sat in cause No. 5,999 (this cause is No. 6,000; defendant being the accused in both cases), in which he was prosecuted for having sold intoxicating liquor to the same person on the same day that he was charged with in this case. It was further agreed that the two complaints and informations were identical—that is, the one in No. 5,999 was identical with that in No. 6,000; that the jurors were interrogated in support of this motion to quash; that the entire panel, having been interrogated in support of his motion, first stated that they had no bias in favor or prejudice against the accused in this case such as would influence them in reaching their verdict; that they did not, from hearsay or otherwise, know anything about the merits of this case. On further cross-examination by appellant, he having stated to the entire panel the issues in this case would be identical with the former case, that would be submitted to them for disposition, and on same evidence as introduced by the state, one of the jurors who rendered his verdict in the former case disqualified himself because his mind was made up, and he was excused. Each of the six jurors who did not sit on the former case answered that they had heard the evidence introduced in that case, and from that evidence had formed a fixed opinion as to the merits of the controversy in that case. Two of them were also disqualified, and were excused because of said opinion. Three jurors were then picked up in lieu of those excused. Under this evidence, the court having overruled appellant's motion and forced him to trial before said jury, he exhausted his three peremptory challenges, by scratching three jurors who had sat in the first case; and the remaining two jurors who sat in the former case, together with three jurors who had heard evidence in said case, were selected to and did try him in this case. The judge puts his qualification to this bill, as follows: "After defendant's counsel had stated to the jury that the testimony in this case would be the same as the testimony in cause No. 5,999, it further shows that the same defendant was charged with selling liquors to the same party, in the same county; and it appeared to the court,...