Smith v. State

• Decision Date: 22 February 1911
• Citation: 135 S.W. 154
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

135 S.W. 154

SMITH v. STATE.

Court of Criminal Appeals of Texas.

February 22, 1911.

Appeal from District Court, Shelby County; James I. Perkins, Judge.

Jim Smith was convicted of violating the local option law, and he appeals. Reversed and remanded.

C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of violating the local option law under the felony statute, and given one year in the penitentiary.

1. The state's conviction was secured practically, if not almost entirely, upon the testimony of Charley Jordan. Jordan testified that he was in the courthouse yard at Center and saw appellant, and had a conversation with him. He expressed a desire to appellant to secure whisky, and finally induced appellant to take some money with which to secure the witness some whisky. Appellant received the money and went away, and came back with a pint of alcohol mixed with water. He said, however, that he did not give the money directly to appellant, but gave it to John Polley, and told him to give it to appellant. Sale was denied by appellant, and evidence introduced to sustain his theory of the case. The state's witness, Jordan, was contradicted and impeached. Some of this went to show that Jordan stated he did not buy whisky from appellant, and that appellant was not guilty. Evidence was also introduced to show that appellant got the whisky or the alcohol from Harris, and paid him the money for it as an accommodation to Jordan. Harris was indicted, also, for violating the local option law, and the evidence shows that after these indictments were found Harris induced appellant to take back the money; appellant's contention being that this was the money he paid Harris for the whisky that he bought for Jordan. Harris' theory was that he had borrowed this money from appellant, with which to pay the express charges on some alcohol that he had a day or two before received by express from Beaumont.

When the case was called for trial, appellant moved to set aside the jury, and requested that another jury be selected with which to try him. Without going into a detailed statement of these matters, in brief, it is shown by the bill of exceptions that the jurors who tried appellant had tried several other cases in which they had rendered verdicts of guilty. Jordan was the state's witness and the alleged purchaser in each instance, and upon his testimony each conviction was secured. Appellant insisted that, inasmuch as the state's case rested upon the witness Jordan, and his testimony would be attacked, and had been attacked, in the other cases, that the jurors had already, in four or five preceding convictions, passed upon the credibility and the weight of the evidence of Jordan, and believed his testimony to the extent of convicting each party so accused. In this connection it may be well to state another fact. The bill of exceptions shows that the witness Jordan had entered into a contract with the sheriff for the sum of $100 to come to Shelby county and "work up" local option cases, and that he had been rather diligent in the matter of inducing parties to sell him whisky. Jordan lived in Gregg county, and had been indicted there for forgery. The court charged the jury in this connection that the main question for them to decide was whether appellant sold the whisky to Jordan. Under these circumstances appellant urged a motion to set aside the jury that was present, and requested that another jury be selected. We are of opinion this motion should have been sustained.

In Obenchain v. State, 35 Tex. Cr. R. 490, 34 S. W. 278, it was held that where the same prosecution was involved, and the jury had passed upon the same facts in another case, that they would be disqualified to sit in a case upon motion made to set them aside. In the case of Green v. State, 54 Tex. Cr. R. 3, 111 S. W. 933, it was held that where the prosecution rested upon substantially the same facts, which had been definitely affirmed by the same jurymen in other cases, and which came from the same witness, and the only difference consisted in the names of the defendants, the jury was not an impartial one, and the verdict of conviction could not be sustained. In the latter case it was shown by the qualification of the judge that the jurors, upon their voir dire examination, stated they had formed no conclusion as to the guilt or innocence of the defendant, and that they were neither biased nor prejudiced for or against him, and that whatever testimony had been developed in any other case would not in the least influence them in arriving at a verdict in defendant's case. And the court further stated that he knew these men to be good citizens, and believed them to be fair and impartial men. This court, in passing upon this, said: "That they were good citizens and good men we should not hesitate to accept the assurance of the learned judge; but in a case where the transaction was the same kind and in the same place, and where the jury had in a former case affirmed their belief of the credibility of the prosecuting witness by their solemn verdict, it is not believed, however good and true they may be, that they are of that impartial quality that the law provides that every defendant may submit his case to and leave the determination of his rights with." In Holmes v. State, 52 Tex. Cr. R. 353, 106 S. W. 1160, Judge Brooks, speaking for the court, says: "We cannot believe that this jury could sit and listen to the trial of a local option case against appellant with practically the same testimony in another case, and not have an opinion previously formed, which opinion would influence their action in finding a verdict. If they believed appellant guilty in the first instance, there is no rational basis for concluding that they would not believe him guilty in the second instance. If the witness swore appellant sold him whisky once, and they believed that fact, we know of no process of reasoning by which they could discard the fact and disbelieve the statement when the witness swore appellant sold him (witness) whisky the second time." Further quoting from the Green Case, this language is found: "We do not think that the fact that other persons than appellant were involved in the other prosecution, can make any difference. The substance of the objection was that having, in a prosecution resting upon substantially the same facts, once definitely affirmed their belief in the credibility of the prosecuting witness, that this opinion of necessity must and would operate in a case against this defendant, based upon the testimony of the same witness, where, except the mere names of the defendant, the evidence was the same, and that it would be an injustice to the defendant to be compelled to submit his cause to a jury with such deliberate and fixed convictions and opinions as to the credibility of the witness upon whose testimony a conviction was sought. The right of trial by jury is an important right. It is indispensable to the due administration of law that an impartial jury should in every case be provided. Unless an unbiased jury is guaranteed to the citizen, then, indeed, is a trial by jury as `idle as a painted ship on a painted ocean'; a hollow mockery and a vain delusion." See, also, Hanes v. State, 107 S. W. 818; ...