Smith v. State

• Decision Date: 03 June 1903
• Citation: 75 S.W. 298
• Parties: SMITH v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

Page 298

75 S.W. 298

SMITH v. STATE.^*

Court of Criminal Appeals of Texas.

June 3, 1903.

Appeal from Falls County Court; W. E. Hunnicutt, Judge.

Doc. Smith was convicted of theft, and appeals. Affirmed.

J. W. Spivey and N. J. Lewellyn, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of stealing an overcoat, his punishment being assessed at a fine of $25 and 30 days' confinement in the county jail.

When the parties announced ready for trial, the clerk furnished appellant's counsel with a list of the jurors, consisting of seven names. Before exercising peremptory challenges, he made request of the court to be furnished with a full panel of talesmen. This was refused, and he was required to pass upon the seven names in the regular list, from which he challenged three. He was subsequently furnished with an additional list of five talesmen summoned by the sheriff, and from these the jury was completed. He undertook to peremptorily challenge two of the jurors, but was not permitted to do so. There was no error in this action of the court.

While prosecuting witness Clark was testifying, state's counsel asked him the following question: "You call him [defendant] `Doctor.' Was he doing any doctoring? Did he do any doctoring?" To which defendant objected on the ground that it was leading, irrelevant, and immaterial to any issue in the case, whether collateral or direct, and because, appellant being a negro, this evidence was calculated to prejudice the jury against him. The witness answered "that he did not know whether he was a doctor or not; that he was going for a doctor, and selling physic." All the parties to this transaction are negroes, and appellant had been the guest of the prosecutor, representing he was practicing his profession as a physician in that immediate neighborhood, and when he took his departure from the residence of prosecutor took the alleged stolen overcoat with him. We do not see how this could have injured appellant in any way. It seems to have been a fact that he was practicing his profession, or claiming to be practicing it, and was selling medicine, and gave or sold medicine to the wife of prosecutor.

Prosecutor's wife testified to the effect that when appellant disappeared from their residence the overcoat also disappeared; in other words, that he carried the coat away with him. Upon further questioning she stated that she was in the adjoining room, and did not notice appellant when he left, but the coat was hanging at the head of the bed in the room where appellant was immediately before he...