Sanchez v. State

• Decision Date: 17 May 1944
• Docket Number: No. 22856.,22856.
• Parties: SANCHEZ v. STATE.
• Court: Texas Court of Criminal Appeals

Page 87

181 S.W.2d 87

SANCHEZ v. STATE.

No. 22856.

Court of Criminal Appeals of Texas.

May 17, 1944.

Rehearing Denied June 21, 1944.

Commissioners' Decision.

Appeal from District Court, Hudspeth County; W. D. Howe, Judge.

Serapio Sanchez was convicted of murder, and he appeals.

Judgment affirmed.

A. L. Carlton, of El Paso, for appellant.

Roy D. Jackson, Dist. Atty., and Gill L. Newsom, Asst. Dist. Atty., both of El Paso, and Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of forty years.

Appellant's first contention is that the trial court erred in declining to sustain his motion to quash the indictment based on the ground of alleged race discrimination in the selection of the grand jury which returned the indictment in this case. He alleged that he was of Mexican descent and belonged to the Mexican race; that the jury commissioners, in the selection of grand jurors, deliberately and designedly discriminated against the members of his race in that they intentionally declined to select any Mexicans as members of the grand jury notwithstanding there were numerous American citizens of Mexican or Spanish descent in Hudspeth County qualified to serve as grand jurors; that this practice of intentionally excluding American citizens of Mexican or Spanish descent from grand jury service has existed and continued from the year 1922 up to the present time (1943); that the act of the jury commissioners as aforesaid was a denial of the equal protection of the law guaranteed to him by the Fourteenth amendment to the Constitution of the United States, etc.

The testimony relative to the action of the jury commissioners in selecting the grand jury which returned the indictment against him shows that they did not intentionally or designedly fail or refuse to select any member of Mexican or Spanish descent; that they selected men whom they considered best qualified for grand jury service; that there were a great number of persons of Mexican or Spanish descent in Hudspeth County who were not citizens, quite a number who could not read, write or speak English, and only a few had paid a poll tax; that approximately forty or fifty per cent of the population of Hudspeth County were of Mexican or Spanish descent. There were a few who could read, write and speak English, who had paid a poll tax but some of them were in the Army. The poll tax list for the year 1942 of Precinct No. 1 showed 28 persons of Mexican or Spanish descent, some of whom were women. The list of Precinct No. 2 disclosed the names of 23 persons. Precinct No. 3 showed none, and the same is true of Precinct No. 4. This showed a sum total of 51, some of whom were women.

Article 339, C.C.P., provides as follows:

"No person shall be selected or serve as a grand juror who does not possess the following qualifications:

"1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror.

"2. He must be a freeholder within the State, or a householder within the county.

"3. He must be of sound mind and good moral character.

"4. He must be able to read and write.

"5. He must not have been convicted of any felony.

"6. He must not be under indictment or other legal accusation for theft or of any felony."

These mandatory provisions of the statute, which are not deemed to be unfair, must be observed by the jury commission in the selection of the prospective grand jurors, and unless a person possesses the required qualifications he is not a competent and qualified grand juror.

In filing his motion to quash the indictment, appellant assumed the burden of sustaining his allegations therein by proof. The trial court patiently heard all the testimony relative to the question presented and decided it adversely to the appellant's contention. We do not feel that under the evidence adduced upon the hearing thereof that we would be authorized or justified in setting aside the conclusion reached by the court on the facts as presented by the record.

Appellant's next complaint relates to the trial court's action in overruling his motion for a change of venue. It was alleged in the motion that there existed such prejudice against American citizens of Mexican or Spanish descent that a person of such nationality could not get a fair and impartial trial in Hudspeth County; that he was a member of the Mexican race; and that American citizens of Mexican or Spanish descent are not called to serve as grand and petit jurors; that no person of Mexican or Spanish descent had been called to serve as jurors for a period of more than six years. It will be noted that there is no allegation in the application that there were citizens of Mexican or Spanish descent who were qualified under the law to serve either as grand or petit jurors. However, the allegation of the existence of prejudice is sufficient, if supported by proof, to have authorized a change of venue. The evidence relative to this issue was pro and con. Three witnesses testified for the appellant that there existed in Hudspeth County prejudice against the appellant; that by some members of the jury panel the defendant could get a fair and impartial trial but that by others he could not; that they heard the case discussed and that the discussion had not all been on one side; that part of them had been favorable to the defendant and part had been unfavorable to him. Two witnesses for the State testified that in their opinion there was no such prejudice existing against American citizens of Mexican or Spanish descent as to prevent appellant from getting a fair and impartial trial; that in their opinion he could get such a trial in Hudspeth County. The bill relating to this matter is qualified by the trial court who states that in the selection of the jury appellant only exhausted ten of his fifteen peremptory challenges.

It will thus be noted that the testimony adduced on the motion presented conflicting theories. It is the rule in this state that if conflicting theories as to prejudice arise from the evidence, the trial court has the discretion of adopting either theory, it being his duty to weigh the evidence. A judgment denying the application will not be disturbed unless it be made to appear that the trial court abused his discretion with respect thereto. See Davis v. State, 120 Tex.Cr.R. 114, 28 S.W.2d 794; Willis v. State, 128 Tex.Cr.R. 504, 81 S.W.2d 693; Garza v. State, 135 Tex.Cr.R. 138, 117 S.W.2d 429. We are unable to reach the conclusion that the record reflects an abuse of discretion on the part of the trial court. We therefore overrule his contention.

Appellant next complains of the court's action in declining to peremptorily instruct the jury to acquit him on the ground that the evidence showed that appellant acted in defense of himself and his father. We are unable to agree with him. The evidence introduced by the State, briefly stated, shows that Mariano Sanchez, the father of appellant, was employed by Bill Hargrove as a farm hand and appellant was also in the employ of Hargrove. On Sunday afternoon Hargrove drove out to his farm and learned that the father of appellant was not there to go to irrigating the crop. Hargrove drove to the town of Acala and saw Mariano leaning against the wall of a store. He approached Mariano and said to him: "Come on, and let's go to work." Mariano replied that ...