Shaver v. State, 27627
| Decision Date | 22 June 1955 |
| Docket Number | No. 27627,27627 |
| Court | Texas Court of Criminal Appeals |
| Parties | Jimmy N. SHAVER, Appellant, v. The STATE of Texas, Appellee. |
M. C. Gonzales, San Antonio, B. D. Geeslin, Newman & McCollum, by Sam McCollum, III, Brady, for appellant.
Austin F. Anderson, Crim. Dist. Atty., San Antonio, Bill Allcorn, Dist. Atty., Brownwood, Richard J. Woods, Asst. Dist. Atty., San Antonio, Leon Douglas, State's Atty., Austin, for the State.
BELCHER, Commissioner.
The offense is murder; the punishment, death.
The trial was had in McCulloch County on a change of venue from Bexar County.
Appellant's defense was that of insanity.
In view of the disposition we make of this case, a summary of the facts will be omitted.
Appellant contends that the trial court erred in overruling his motion for a new trial based upon the ground that he did not have a fair trial by an impartial jury. A hearing was had on said motion under allegations that Troy Cates, one of the jurors, had formed and expressed an opinion as to appellant's guilt and the punishment he would assess prior to the time he was selected on the jury.
It was shown on the hearing that said juror, on voir dire examination, answered that he had no interest, prejudice, or opinion and had expressed none as to appellant's sanity or his guilt or innocence.
It was further shown that neither appellant or his counsel were negligent in failing to discover said juror's attitude toward the accused. They relied upon his answers to questions on his voir dire touching his knowledge of any fact or his feeling toward appellant which might influence him in his action as a juror in finding a verdict.
Appellant's witness, Ramey Dikes, testified that on the morning that Troy Cates reported for jury service, he heard him say: 'I have to go to town, I am on the special venire panel' and 'If I am selected on that jury I will burn the bum (meaning the appellant) or hang the jury until doomsday.'
The state's witness, Bobby Lee Miller, testified as follows: 'I don't remember the specific day the conversation was going on; but after we heard the (appellant's) case was coming up for trial here, we discussed it pro and con; but prior to the special venire being called for the case, I will truthfully say that I heard Troy Cates express his opinion that if he were to sit on that jury, he would in all probability give the man the chair.'
Berta Sell, called by the state as a witness, testified that when the newspapers first reported the transfer of appellant's case to McCulloch County that she and Troy Cates had many arguments about it, and that he, at that time, expressed to her a fixed opinion that the appellant was sane.
Troy Cates, the juror here under attack, was called by the state as a witness, and he testified that he saw Ramey Dikes on the day he reported for jury service, but denied making the statement attributed to him by the witness Dikes as above shown. He admitted arguing with Berta Sell many times about the sanity of the appellant, but said he couldn't recall having expressed an opinion as to his sanity.
On cross-examination, Cates testified that he was a brother-in-law of the Sheriff of McCulloch County and had been deputy sheriff under him for two and one-half years. He further testified as follows:
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Our Bill of Rights provides that the accused in all criminal prosecutions shall have a fair trial by an impartial jury. Tex.Const., Art. I, Sec. 10, Vernon's Ann.St.
An impartial jury has been said to be one which favors neither party, which is unprejudiced, disinterested, equitable, and just; and is composed of jurors who have not prejudged the merits of the case. Randle v. State, 34 Tex.Cr. 43, 28 S.W. 953; Duncan v. State, 79 Tex.Cr. 206, 184 S.W. 195.
It has also been said that an impartial jury is one composed of twelve impartial jurors. The presence of one partial juror on a jury destroys the impartiality of the body, and renders it partial. Tex.Const., Art. V, Sec. 13; Adams v. State, 92 Tex.Cr.R. 264, 243 S.W. 474. The jury acts as a unit, and the disqualification or prejudice of one of its members is sufficient upon a motion for a new trial, to vitiate the verdict. Bolt v. State, 112 Tex.Cr.R. 267, 16...
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