Steen v. State

• Decision Date: 07 June 1922
• Docket Number: (No. 6965.)
• Citation: 242 S.W. 1047
• Parties: STEEN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1047

242 S.W. 1047

STEEN v. STATE.

(No. 6965.)

Court of Criminal Appeals of Texas.

June 7, 1922.

Appeal from District Court, Bexar County; S. C. Tayloe, Judge.

John Steen was convicted of murder, and he appeals. Affirmed.

See, also, 88 Tex. Cr. R. 256, 225 S. W. 529.

Chambers, Watson & Johnson, Horace E. Wilson, and M. W. Terrell, all of San Antonio, for appellant.

D. A. McAskill, Dist. Atty., and W. S. Anthony, Asst. Dist. Atty., both of San Antonio, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Bexar county of murder, and his punishment fixed at confinement in the penitentiary for life.

The first and chief contention of appellant is that the trial court erred in sustaining the state's demurrer to appellant's plea of former jeopardy, and in declining to have said plea submitted to the jury. If such plea showed on its face that same consisted of a matter not legally sufficient to constitute jeopardy, there would be no error. If otherwise, the action of the trial court in declining to hear evidence might be unwarranted. From the bill of exceptions presenting this matter we learn that this cause was set for trial in the court below on June 6, 1921, and a special venire ordered. It is not clear from the recitals in said bill whether appellant was arraigned on said day or not, but this does not appear to be material further than is necessary to understand this opinion. It is stated that, after being duly arraigned, six jurors were separately selected and sworn to try this case. The fifth juror, when accepted, was known to be under a felony indictment. After the selection of the sixth juror, doubt arising in the mind of the state as to the legality of a jury on which sat one under indictment for a felony, even when both parties to the case had agreed to waive such disqualification, the question was raised and presented to the trial court, who concluded that the presence of said juror would of necessity make an illegal jury under articles 692 and 695 of our Code of Criminal Procedure. The trial court offered to the appellant the opportunity to disqualify or excuse said juror, but the appellant declined either to object or agree to excuse, or to any other action in the premises except to proceed to get a full panel and go on with the trial. The court discharged the six men already selected upon the jury, and entered an order continuing the cause for the term. At the next term when the case was called, a plea of jeopardy was presented to the court, setting up the facts just set forth, and, as stated above, the state demurred to the sufficiency of said plea, and said demurrer was sustained, and appellant was not allowed to present said plea to the jury or introduce any testimony in support thereof, but said plea was stricken from the record. Admitting the truth of the facts stated in said plea, could jeopardy be based thereon?

"Jeopardy" has been often defined by the courts and text-writers. Mr. Cooley's statement of what constitutes jeopardy, approved in Powell v. State, 17 Tex. App. 350, and many later Texas decisions down to Hipple v. State, 80 Tex. Cr. R. 531, 191 S. W. 1155, L. R. A. 1917D, 1141, is as follows:

"A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continuance of the cause." Cooley's Const. Lim. (15th Ed.) 404.

Under the authorities we are of opinion that it should be stated as part of the definition of "jeopardy" that one is not "put upon trial" until the indictment or information is read to the jury and the plea of the accused is heard. Yerger v. State (Tex. Cr. App.) 41 S. W. 621; Mays v. State, 51 Tex. Cr. R. 32, 101 S. W. 233; Sedgwick v. State, 57 Tex. Cr. R. 420, 123 S. W. 702. In the Yerger Case, supra, Judge Hurt, in his terse, lucid manner, remarks:

"The trial was before a court of competent jurisdiction, the jury was impaneled and sworn, the indictment read to the jury, but the accused did not plead to the indictment. The question is: Did jeopardy attach? We answer in the negative. We know of no authority holding, under this state of case, that jeopardy would attach."

The arraignment of the accused is stated in article 556, C. C. P., to be for the purpose of reading to the defendant the indictment against him and hearing his plea thereto.

"The principal office of the arraignment is to fix the personal identity of the accused." Hendrick v. State, 6 Tex. 341.

"It has never been held * * * that the arraignment per se, as a prescribed method of procedure in capital cases, was a sine qua non to the * * * conviction." Wilson v. State, 17 Tex. App. 536.

It is not necessary that the arraignment be in the presence of the jury. Smith v. State, 1 Tex. App. 414; Sims v. State, 36 Tex. Cr. R. 163, 36 S. W. 256. After arraignment once, at subsequent trials it is not necessary that it be repeated. Shaw v. State, 32...