Sewall v. State

• Decision Date: 12 June 1912
• Citation: 148 S.W. 569
• Parties: SEWALL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 569

148 S.W. 569

SEWALL v. STATE.

Court of Criminal Appeals of Texas.

June 12, 1912.

Appeal from District Court, San Jacinto County; L. B. Hightower, Judge.

Earnest Sewall was convicted of murder, and he appeals. Reversed and remanded.

J. V. Lea, R. H. Holland, J. M. Hansbro, and Wm. H. McMurrey, all of Coldspring, and G. I. Turnley, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Under an indictment charging murder appellant was given the death penalty.

1. A bill of exceptions recites that, when the special venire came to be drawn, all of the jurors selected by the jury commissioners had been exhausted except 30. These were drawn, and the sheriff instructed by the court to summon 70 additional jurors, making 100 in all. The sheriff went to the tax rolls, and selected a certain number of names from each justice precinct of the county. This he apportioned among the precincts he says as equitably as he could. After doing this, he wrote the names from each precinct separately, and mailed them out to parties, with instruction to summon them. Some of these he says were constables and some his deputy sheriffs. The bill shows that none of these officers were sworn except possibly two. This is made evident in the bill both by the testimony of the sheriff and statement of the trial judge. Exception was taken to this manner of selecting and serving the jurors, and motion was made to quash. This was overruled. The revised Civil Statutes (article 3184) requires that: "Whenever it may be necessary to summon jurors who have not been selected by jury commissioners under the provisions of this title, the court shall administer to the sheriff and each of his deputies the following oath: `You do solemnly swear that you will, to the best of your skill and ability, and without bias or favor toward any party, summon such jurors as may be ordered by the court; that you will select none but impartial, sensible and sober men, having the qualifications of jurors under the law; that you will not, directly or indirectly, converse or communicate with any juryman touching any case pending for trial; and that you will not by any means attempt to influence, advise or control any juryman in his opinion in any case which may be tried by him, so help you God.'" This oath was not administered to the officers who summoned the jurors. This has been held requisite in all the cases where the question has arisen. Wyers v. State, 22 Tex. App. 258, 2 S. W. 722; Hicks v. State, 5 Tex. App. 488; Habel v. State, 28 Tex. App. 588, 13 S. W. 1001; Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. 588; Adams v. State, 35 Tex. Cr. R. 285, 33 S. W. 354; Deon v. State, 37 Tex. Cr. R. 506, 40 S. W. 266; Rev. Civil Stat. art. 3184.

2. Another question suggested for revision is the failure of the court to charge the law applicable to negligent homicide. The question is fully and properly submitted for decision. There are two theories in the case: The state's contention is that the homicide was murder; appellant's that it was an accidental killing negligently done. It is disclosed by all the evidence that several parties, among them deceased and appellant, left the town of Shephard for Drews Landing on the Trinity river. All parties were horseback. Deceased was a white man, the others negroes. Reaching the forks of the road about a mile or such matter from the town of Shephard the parties stopped. Two of them engaged in a crap game. All of them drank whisky. The deceased, Davidson, reloaded his pistol, which he had fired off before reaching that point. Appellant secured his pistol from one of the other negroes who had it, and loaded it. The state's witness testified while standing there appellant shot the deceased and killed him. Parties there examined his body, and failed to find where he had been shot. It was there said that he had broken his neck by falling from his horse, and the state's contention is it was an agreement among them...