Sanchez v. State

• Decision Date: 19 October 1921
• Docket Number: (No. 6276.)
• Citation: 236 S.W. 734
• Parties: SANCHEZ v. STATE.
• Court: Texas Court of Criminal Appeals

236 S.W. 734

SANCHEZ v. STATE.

(No. 6276.)

Court of Criminal Appeals of Texas.

October 19, 1921.

Rehearing Denied January 11, 1922.

Appeal from District Court, Falls County; Prentice Oltorf, Judge.

Pedro Sanchez was convicted of murder, and he appeals. Affirmed.

Nat Llewellyn, of Marlin, for appellant.

R. H. Hamilton, Asst. Atty. Gen., for the State.

MORROW, P. J.

The conviction is for the murder of Oscar Sharp; appellant is condemned to suffer death.

The facts developed are not different from those in the companion cases. Israel v. State, 230 S. W. 984; and Flores v State, 231 S. W. 786.

Israel, Flores, and appellant, Sanchez, were confined in the county jail. Flores had the privilege of the "run-around." Sharp, a deputy sheriff, while feeding the prisoners, was seized by Flores and assaulted by Israel. Flores, obtaining Sharp's pistol, shot him to death. Appellant, according to the state's witnesses, participated, seizing the deceased around the legs and obtaining possession of the jail keys. The keys were wrested from him by another prisoner, who threw them out the door and gave the alarm. In separate trials antecedent to that of appellant, the death penalty was assessed against both Flores and Israel.

Appellant insists that he was denied the rights accorded him under articles 672, 578, and 558, Code Crim. Proc.; that is, he was not given the benefit of the mandatory statute requiring that he be served with a copy of the return of the venire writ one day before the trial, that his appointed counsel was not given time to prepare for trial, and that the two days allowed by statute for filing the pleadings were not accorded him. The facts set out in the bills of exceptions which were prepared by the court fail to support appellant's complaint. The copy of the return on the venire writ was served upon him several days before the trial. His case was originally set for the 22d of the month, later postponed to the 26th, and subsequently deferred to the 29th of the month. The counsel, appointed some 10 days prior to the first setting, represented the appellant the 24th, when he was permitted by the court to withdraw, and another appointed in his stead. The new appointment was made on the afternoon of the 24th, but the counsel failed to see the appellant, and did not have the papers in the case until the morning of the 26th of the month. Failure to obtain the papers was due to the absence of the clerk, though they might have been obtained from the deputy had counsel known there was one. Counsel was told by the court, on the hearing of his motion, that he would give him such time as he deemed necessary to prepare and file any motions that he desired, including the motion to change venue, and, in fact, he did postpone the trial for three days.

Bills of exceptions Nos. 3, 4, 6, 7, 8, and 9 refer to the action of the court in refusing to sustain the appellant's challenge of certain veniremen for cause.

Venireman Linthicum said, in substance (bill No. 6) that he had learned of the homicide, and expressed an opinion concerning all who took part, but had no knowledge whether appellant was a participant or not; that he was aware of the penalty assessed against those who had been tried, and was of the opinion that, if appellant's connection was shown with the commission of the offense, he should be dealt with in the same manner as were his associates.

The attitude of Juror Jenkins (bill No. 7) was not materially different from that of Linthicum, save that he was a friend of the deceased of long standing.

Venireman Davis (bill No. 9), while he had not heard of the trials of the companion cases, was aware, in a general way, of the evidence. He said:

"I feel that I have an opinion. I suppose I would take that opinion in the jury box. I think that it would take less evidence to establish the defendant's guilt than it would if I had not formed an opinion about the other cases. It would take evidence to remove the opinion I now have. I would have to be convinced. The defendant would have to bring that evidence in to convince me that he was not guilty."

This opinion was established upon what he had read in the newspapers and what he had heard. The juror expressed, on cross-examination, the belief that he could lay aside the opinion and become an unprejudiced juror, and said that, from hearsay, he was aware of the fact that the appellant was with the parties who had been convicted with the killing of Sharp. We are not prepared to say that the trial judge was warranted in refusing to sustain the challenge for cause for the jurors named. The opinions formed by the veniremen and the source thereof were not such as would apparently characterize them as impartial jurors within the purview of the statutes of this state. See Code Crim. Proc. art. 692, subd. 13; Vernon's Texas Crim. Law, vol. 2, p. 375, note 30, and cases cited; also Shannon v State, 34 Tex. Cr. R. 5, 28 S. W. 540; and other cases listed by Mr. Branch in his Texas Penal Code, §§ 558, 559. The conclusion of the veniremen that they might discard their opinions and render an impartial verdict was not, under the circumstances, conclusive of their impartiality. Gallaher v. State, 40 Tex. Cr. R. 307, 50 S. W. 388. Assuming them not to have been impartial jurors, inasmuch as neither of them served on the jury that tried the appellant, the error in refusing to dismiss them was not alone sufficient to work a reversal of the judgment. Morrison v. State, 40 Tex. Cr. R. 499, 51 S. W. 358; Taylor v. State, 44 Tex. Cr. R. 546, 72 S. W. 396; Reynolds v. State, 71 Tex Cr. R. 454, 160 S. W. 364; Havard v. State, 73 Tex. Cr. R. 578, 166 S. W. 507; Myers v. State, 7 Tex. App. 653; and other cases listed in Branch's Tex. Penal Code, § 543, p. 279.

The established rule appears to be that to secure a reversal by reason of an erroneous failure of the trial judge to sustain the challenge of veniremen for cause the bill of exceptions must show injury, and where the bill fails to show that the error resulted in forcing upon the jury, against appellant's will, an objectionable juror, it is insufficient to comply with the rule. Villereal v. State, 61 S. W. 761; Mays v. State, 50 Tex. Cr. R. 170, 96 S. W. 329; Galan v. State, 76 Tex. Cr. R. 619, 177 S. W. 125; Hudson v. State, 28 Tex. App. 323, 13 S. W. 388; Sutton v. State, 31 Tex. Cr. R. 298, 20 S. W. 564; Aistrop v. State, 31 Tex. Cr. R. 460, 20 S. W. 989; Green v. State, 49 Tex. Cr. R. 647, 98 S. W. 1059; Campos v. State, 50 Tex. Cr. R. 291, 97 S. W. 100; Lahue v. State, 51 Tex. Cr. R. 162, 101 S. W. 1008; Wyres v. State, 74 Tex. Cr. R. 28, 166 S. W. 1151. This is not shown in either of the bills.

A motion to change the venue upon the ground of prejudice was prepared and sworn to by the appellant, but compurgators were not obtainable. These were essential to require its consideration as an application upon the part of the appellant. Code Crim. Proc. art. 628. The court rightly sustained an exception to it. Mitchell v. State, 43 Tex. 512; O'Neal v. State, 14 Tex. App. 582; Macklin v. State, 53 Tex. Cr. R. 197, 109 S. W. 145; Gibson v. State, 53 Tex. Cr. R. 349, 110 S. W. 41. The court, as disclosed by the bill, considered whether it was his duty to change the venue on his own motion. Bill of exceptions No. 13, relating to this matter, was prepared by the trial judge. From it, it is made to appear that there were 100 men drawn; 71 summoned. A number were excused by agreement. Fifty appeared and were exhausted without obtaining a jury. Talesmen were called, and after the examination of a total of 103 men, the jury was complete. Sixty-two were excused upon challenge for cause. Twelve were peremptorily challenged by the state, and 17 were excused upon peremptory challenges of the appellant. Of those excused, 18 were because of conscientious scruples against capital punishment; 4 were prejudiced against the nationality to which the appellant belonged. Of those peremptorily challenged, only 4 had an opinion. Ten of the 12 jurors who served had no opinion, while 2 had qualified opinions obtained from hearsay, which would not influence their verdict.

All of the jurors who served were accepted by the appellant before the exhaustion of his 15 peremptory challenges, with the exception of the Juror Johnson. The bill of exceptions shows that Johnson stated that he was "without bias, prejudice or opinion." On cross-examination, he said he had heard something about the case, and read of it when it occurred, and heard it discussed, but had formed no opinion as to what should be done with the participants; had given it but little thought; that he had no doubt that Sharp was dead, and believed he was killed in jail, and that he had heard it reported that he was killed by two Mexicans and a negro who were trying to escape; that there was no doubt in his mind as to those facts; that he had known Sharp about 10 years; liked him as a man, but had had no business with him; that he could render an impartial verdict. Upon conclusion of this examination, no point was made touching his qualifications, but appellant's counsel said, "We pass the juror," and state's counsel, after deliberation and conference among themselves, accepted the juror. Upon this happening, counsel for appellant challenged him for cause because "it appears that the juror had heard all the facts in the case and said he thought it was true." The court then reexamined the juror, and he stated that he had no opinion whatever about this case; that he could try the defendant solely on the testimony in the case, uninfluenced by anything he had heard or any information as to how it happened, and the fact that he had an opinion that Sharp was killed would have no bearing upon his passing upon the testimony impartially; that he could and would disregard anything he had heard about it and try the case on the evidence adduced on the trial. The counsel for appellant did not further...