Smith v. State

• Decision Date: 20 April 1932
• Docket Number: No. 15116.,15116.
• Citation: 49 S.W.2d 739
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 739

49 S.W.2d 739

SMITH v. STATE.

No. 15116.

Court of Criminal Appeals of Texas.

April 20, 1932.

Commissioners' Decision.

Appeal from District Court, McLennan County; D. W. Bartlett, Judge.

Cecil Smith was convicted of murder, and he appeals.

Reversed and remanded.

Joe W. Taylor, John N. Gauntt, and I. Mack Wood, all of Waco, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for life.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Ernest Holmes by shooting him with a pistol.

Chapter 151, Special Laws of the Forty-Second Legislature (1931), at its Regular Session (Vernon's Ann. Civ. St. art. 2116a), provides for a jury wheel and the selection of juries by means thereof in counties having a population of not less than 95,000 and not more than 125,000 "according to the `lastest' (latest) United States census." Section 1 of the act reads, in part, as follows: "Between the 1st and 15th days of July, 1931, and between the 1st and 15th of July each year thereafter the Judges of the District Courts of the county hereinafter described shall appoint Jury Commissioners for the said Courts as follows: One Commissioner from each rural Justice Precinct and in Justice Precincts having therein a city containing a population of not less than twenty thousand (20,000) and not more than thirty-five thousand (35,000), two Commissioners; and the Precincts containing a city of more than thirty-five thousand (35,000) and not more than seventy-five thousand (75,000), four Commissioners; and the Precincts containing seventy-five thousand (75,000) and not more than one hundred twenty-five thousand (125,000), six Commissioners; and in Precincts, a city of more than one hundred twenty-five thousand (125,000), eight Commissioners; and shall cause the Sheriff to notify them of their appointment and when they are to appear."

The remaining provisions of section 1 relate to the qualifications of the jury commissioners and the time for meeting for the purpose of filling the wheel. Section 2, in substance, provides that the commissioners shall place in the wheel the names of as many men who are known to be qualified jurors under the law as may be directed by the court. Section 3 relates to the drawing of the jurors from the wheel, it being therein provided: "Whenever directed by the Court having charge of said Jurors, the District Clerk or one of his deputies in the presence and under the direction of the District Judge, if the Jurors are to be drawn for the District Court or the Clerk of the County Court or one of his deputies, or the Sheriff or one of his deputies in the presence and under the direction of the County Judge, if the Jurors are to be drawn for the County Court, shall draw from the wheel containing the names of the Jurors after the same has been well turned, so that the cards therein are thoroughly mixed one by one, the names of thirty-six Jurors, or a greater or less number where such Judge has so directed, for each week of the term of the District or County Courts for which a Jury may be required, and shall record such names as they are drawn upon as many separate sheets of paper as there are weeks for such term or terms for which Jurors will be required. At such drawing, no person other than those above named, shall be permitted to be present. The officers attending such drawing shall not divulge the name of any person that may be drawn as a Juror to any person."

No provision is made for sealing and certifying the lists of jurors drawn from the wheel. No provision is made for the delivery of the lists by the judge to the clerk or one of his deputies. No provision is made for administering an oath enjoining upon the officer the duty of keeping the lists intact. The act provides further that no other law inconsistent with the provisions of said act shall be applicable.

The statute in question was enacted after January 13, 1931, and became effective on May 13th of the same year. It is recited therein that Senate Bill No. 105, chapter 29, Acts of the First Called Session of the Forty-First Legislature, is thereby amended. Reference to Senate Bill No. 105, chapter 29, Acts of the First Called Session of the Forty-First Legislature, discloses that it is identical in its terms with the amendatory act, except that it is provided in the act amended that its provisions shall be applicable in every county in the state having a population of not less than 78,000 and not more than 85,000 according to the "latest United States census." Senate Bill No. 105, chapter 29, was enacted after April 22, 1929, and became effective on May 23d of the same year.

At the time of the enactment of the statute last mentioned, the latest United States census, which was that of 1920, gave McLennan county a population of 82,921. It was the only county in the state affected by the provisions of Senate Bill 105, chapter 29. The census of 1930 disclosed that McLennan county had a population of 98,682. Hence the county, by virtue of the increased population, had passed beyond the operation of Senate Bill 105, chapter 29, and had returned to the classification within the purview of the Acts of 1907, page 269, chapter 139, as amended by the Acts of 1911, page 150, chapter 82, and as further amended by chapters 43 and 116, Acts 1929, Forty-First Legislature (Vernon's Annotated Civil Statutes, articles 2094, 2095), relating to the selection of juries by means of a jury wheel in counties having a population of not less than 58,000, or containing therein a city of not less than 20,000, according to the preceding United States census. After the publication of the United States census for 1930, the Legislature amended Senate Bill 105, chapter 29, Acts of the First Called Session of the Forty-First Legislature in the manner heretofore mentioned, that is, the provisions thereof were re-enacted in chapter 151, Special Laws of the Forty-Second Legislature at its Regular Session, with the proviso that such provisions should have application only in counties containing a population of not less than 95,000 and not more than 125,000 "according to the latest United States census." At the time of the enactment of the amended statute, McLennan county alone was affected by its provisions. At the present time it is alone within the operation of said statute.

The Act of 1907, page 269, chapter 139, as amended by the Acts of 1911, page 150, chapter 82, and as further amended by chapters 43 and 116, Acts 1929, Forty-First Legislature (Vernon's Annotated Civil Statutes, articles 2094, 2095), provide for the drawing of juries by means of a jury wheel. We quote from the act as follows: "Between the first and fifteenth days of August of each year, in each county having a population of at least fifty-eight thousand or having therein a city containing a population of at least twenty thousand, as shown by the preceding Federal Census, the Tax Collector or one of his deputies, together with the Tax Assessor or one of his deputies, together with the Sheriff or one one of his deputies, and the County Clerk or one of his deputies, and the District Clerk or one of his deputies, shall meet at the court house of their county and select from the list of qualified jurors of such county as shown by the tax lists in the Tax Assessor's office for the current year, the jurors for service in the District and County Courts of such county for the ensuing year in the manner hereinafter provided."

The Act, among other things, provides that the names of all men known to be qualified jurors under the law shall be placed in the wheel. It further provides for the drawing of the names of the jurors from the wheel, for the sealing and certification of the lists, the delivery of the lists by the judge of the court to the clerk after administering an oath enjoining secrecy touching the disposition and opening of such lists.

If given effect, the act involved in the present case withdraws from the operation of the act of 1907, as amended, counties having a population of not less than 95,000 and not more than 125,000, and leaves within the purview of the act of 1907 three classes of counties, viz.: First, counties having a population of not less than 58,000, and not more than 94,999; second, counties having a population of not less than 125,001; and, third, counties having a population of less than 58,000, but having therein a city containing a population of at least 20,000.

With the foregoing general view of the statutes involved, we advert to appellant's criticism of chapter 151, Special Laws of the Forty-Second Legislature, at its Regular Session. Over objection by appellant, timely and properly interposed, he was forced to take a jury drawn in accordance with the provisions of said act. Touching the constitutionality of the act, it is urged that it is a local or special law, and hence within the inhibition of article 3, § 56, of the Constitution of Texas, which, in part, provides: "The legislature shall not, except as otherwise provided in this constitution, pass any local or special law, authorizing: * * * Summoning or empanneling grand or petit juries. * * *"

It appears that the enactment of a local or special law authorizing the summoning or impaneling of grand or petit juries is not "otherwise provided in the Constitution."

A law is not special because it does not apply to all persons or things alike. Clark v. Finley, 93 Tex. 171, 54 S. W. 343, 345. The definition of a "general law," as distinguished from a local or special law, given by the Supreme Court of Pennsylvania in the case of Wheeler v. Philadelphia, 77 Pa. 338, and approved by the Supreme Court of our own state, appears to be accurate. Clark v. Finley, supra. In the former case the court said: "Without entering at large upon the discussion of what is here meant by a...