Shaver v. State
| Decision Date | 09 January 1957 |
| Docket Number | No. 28560,28560 |
| Parties | Jimmy N. SHAVER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Jarrard Secrest, John T. Cox, Temple, for appellant.
Hubert W. Green, Jr., Criminal Dist. Atty., San Antonio, Raymond Thornton, Dist. Atty., Belton, Richard J. Woods, First Asst. Criminal Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder; the punishment, death.
The indictment, returned in the Criminal District Court of Bexar County, alleged that appellant voluntarily and with malice aforethought, killed and murdered Chere Jo Horton by striking and beating her with his hands and fists, and in separate count alleged such murder in some way or manner and by some means, instrument and weapon to the grand jurors unknown.
Venue being changed to McCulloch County, appellant was tried, convicted and assessed the death penalty. On appeal from such conviction, the judgment was reversed. Shaver v. State, Tex.Cr.App., 280 S.W.2d 740.
Venue was thereafter changed to Bell County and this appeal is from a conviction in the District Court of that County. Again his punishment was assessed by a jury at death.
The record shows without question that appellant took the three year old girl from a beer tavern where she was playing with her brother, while her parents were patronizing the tavern, and left her dead and abused body in the brush near a gravel pit. It is also shown beyond question that he was alone with the child and inflicted the injuries to the child, which the autopsy revealed consisted of a fractured skull; hemorrhage of the brain; fractured jaw and laceration and tear of the vagina.
There was proper and sufficient proof that the injuries mentioned caused the death of the child and to sustain the allegation of the indictment as to the means used in inflicting the injuries.
The sole defense, as on the former trial, was that of insanity which, together with temporary insanity produced by the voluntary recent use of intoxicating liquor, was fully explained and charged upon by the trial judge, and to which charge no objections were leveled.
The issue of insanity was settled by the jury's verdict and there is no issue raised as to the sufficiency of the evidence to sustain their finding.
Eminent and able counsel appointed by the court to represent appellant upon the trial in Bell County present two grounds upon which they seek reversal.
First appellant complains of the overruling of his motion for mistrial based upon the fact that the Sheriff of Bell County was permitted to assist the district attorney in the selection of the jurors.
The motion for mistrial was made after the selection of the jury had been completed, but the record shows that at an earlier time appellant's counsel had complained to the trial judge about the procedure.
As presented in appellant's brief, a main complaint is that the sheriff, during the greater time consumed in selecting the jury, was seated at counsel table on the side of the State.
We find no error in the action of the sheriff in giving the district attorney the benefit of his judgment as to prospective jurors and the exercise of the State's peremptory challenges.
We have held that the sheriff is not disqualified from summoning jurors because he conceived it his duty to work for the State, and the jurors summoned by him are not disqualified to serve. Bennett v. State, 95 Tex.Cr.R. 70, 252 S.W. 790.
Appellant is correct in his contention that the trial judge should not permit the sheriff to sit with counsel for the State and take part in the interrogation of the veniremen on voir dire.
The record, however, does not show that appellant's counsel complained or objected because the sheriff was seated at counsel table, or made any request of the trial court to have the sheriff remove himself to another place in the courtroom....
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