State v. Ezell

• Decision Date: 01 January 1874
• Citation: 41 Tex. 35
• Parties: THE STATE v. D. M. EZELL AND JOHN IVEY.
• Court: Texas Supreme Court

41 Tex. 35

THE STATE

v.D. M. EZELL AND JOHN IVEY.

Supreme Court of Texas.

1874.

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

D. M. Ezell and John Ivey were indicted for theft of a steer. On the trial two of the defendants' witnesses were asked by counsel for the State where they had come from when they came to testify? The objection to the question was overruled, and each answered that he had come from jail. The court would not permit those witnesses to explain the circumstances of their imprisonment, and to state whether they were innocent of the charge preferred against them.

In the formation of the jury defendants' counsel insisted on having the panel filled after each peremptory challenge. This was refused by the court, and the refusal assigned for error. There was a verdict of guilty, and assessing their punishment at two years' confinement in the penitentiary.

N. G. Shelley and Terrell & Walker, for appellants.

D. E. Thomas, also for appellants, cited as the proper mode of challenging 4 Barn. & Ald. Rep. K. B., 476; 1 Hob. R. K. B., 235; Cooley v. The State, 38 Tex., 638.

George Clark, Attorney General, for the State.

REEVES, ASSOCIATE JUSTICE.

The court did not err in the ruling touching the appellants' right of challenge to the jury, and the mode observed in forming the jury, as shown by the judge in his explanation accompanying the bill of exception, which is as follows: “The defendant was required to pass upon a full jury, and to challenge or accept them, and when he had passed upon the jurors in the box and challenged or accepted them, then the places of those challenged were filled and defendant called upon to pass upon those jurors called to fill the places. In other words, the defendant was not allowed to swap jurors.”

It is presumed that the attention of the court was not called to the opinion in James Cooley v. The State, delivered in September, 1873, and not reported, in which Justice Walker, in delivering the opinion of the court, holds the contrary, and lays down the rules for the guidance of the District Courts in the formation of the jury and the right of challenge.

The decisions of the courts in the different States are not in harmony on this subject, generally following the English practice, where it has not been regulated by statute. By the English practice it is understood that the party has a right to challenge until the juror is sworn, and that each juror is sworn as soon as he is examined, and opportunity is given for challenge, and not, as with us, after the jury has been completed; and it is said, “The delay in swearing him when he is examined is not to give any privilege to the prisoner which he did not claim elsewhere, but to prevent multiplying oaths, and to save the delay incident to the administration of the oath twelve times instead of once.” Under this rule the practice in both cases is the same. In the one case the right of challenge must be exercised at the time the juror is sworn, and in the other when he takes his seat as a juror after having been examined. (State v. Porter, 18 Conn. Rep., p. 166.)

Permission has been given to parties to challenge for cause after a juror has been accepted and before he is sworn; its sufficiency, and the reason why it was not made sooner, to be judged of by the court. (McFadden v. The Commonwealth, 23 Penn. State Rep., 12; Edelen v. Gough, 8 Gill, Md. Rep., 87; Spencer v. De France, 3 Iowa, Green's, 216; Williams v. The State, 3 Ga., 453.)

In other cases a party is allowed to challenge a juror after he was accepted, but before he was sworn, without showing cause. (Beauchamp v. The State, 6 Blackf. Rep., 299; The State v. Patrick, 3 Jones, N. C., 447.)

Again, it has been held that the right of peremptory challenge is a right to reject and not to select a juror, and that the order in which it was done was a matter within the control of the court. (State v. Hays, 23 Mo., Jones, 287.)

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