Suit v. State

• Decision Date: 31 October 1891
• Parties: SUIT v. STATE.
• Court: Texas Court of Appeals

17 S.W. 458

SUIT v. STATE.

Court of Appeals of Texas.

October 31, 1891.

Appeal from district court, Armstrong county; G. A. BROWN, Judge.

J. H. Suit was indicted for murder. He was convicted of murder in the first degree, and sentenced to the penitentiary for life, and appeals. Affirmed.

Woldert & Johnson and J. V. Meek, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

DAVIDSON, J.

This is an appeal from a conviction of murder in the first degree, wherein the appellant was allotted a life sentence, as his punishment, in the penitentiary. The conviction occurred on the 27th day of May, 1891, and the court adjourned for the term on the 29th day of the same month. The statement of facts was certified by the judge on June 26th, and filed the following day, — nearly one month after the adjournment of court. One of the attorneys for appellant prepared a statement of facts, and on June 5th mailed it to the district attorney; and it is stated that, owing to interruptions in the carrying and delivery of the mails on the railroad, occasioned by high waters, which washed away some of the bridges on the line of railway, the statement of facts did not reach the district attorney until the 15th day of June. This is the substance of the affidavit of the attorney making same. The district judge certifies that it was made known to him on the 24th day of June that the parties had failed to agree on a statement of facts, and he then certified the statement found in the record. When a statement of facts has not been filed within the time prescribed by law,¹ or within the 10 days allowed by the order of court, the party desiring to have same considered on appeal must show to the satisfaction of the appellate court that he has used due diligence to obtain the approval and signature of the judge thereto, and file same within the time prescribed. He must also show that his failure to file same within the time prescribed is not due to his fault or neglect, and that such failure is the result of causes beyond his or his attorney's control. George v. State, 25 Tex. App. 229, 8 S. W. Rep. 25; Spencer v. State, 25 Tex. App. 585, 8 S. W. Rep. 648; Farris v. State, 26 Tex. App. 105, 9 S. W. Rep. 487; Acts 20th Leg. 17. We are of opinion that the requirements of the statute have not been met by appellant, and hence we cannot consider the statement of facts.

Appellant moved to quash the writ of special venire on several grounds, only two of which are necessary to be noticed, because the remaining grounds are not supported by the record. It is contended (1) that the writ should have been quashed, because it was directed to the sheriff or any constable of the county, and not to the sheriff only, as provided by the statute; and (2) the writ was ordered to be returned on May 22, 189 which was an impossible date. While it may have been an irregularity to direct the writ to "any constable," in addition to the sheriff, it cannot be held that this would vitiate the writ. The title of the summoning officer constitutes no ground for a challenge to the array, nor will the command to the sheriff or any other person or officer in the alternative vitiate the process. It is shown by the record in this cause that the sheriff did actually execute and return the writ. It is not contended appellant suffered any injury in this connection. It has been held that the fact that a special venire facias was served by a person not having the writ in his possession and having no written appointment as a deputy-sheriff affords no ground for a motion to quash the return on the writ if it appears that the writ was executed by a person professing to act for the sheriff. Gillum v. State, 62 Miss. 547. The writ was amended, so as to show the true date of the order for the return of the writ, by adding the figure 1 to the three figures 189, making the date to read May 22, 1891, instead of May 22, 189 . This was correct, under the previous rulings of this court, and these rulings are themselves correct. Washington v. State, 8 Tex. App. 377; Sterling v. State, 15 Tex. App. 249; Murray v. State, 21 Tex. App. 466, 1 S. W. Rep. 522. There was no error in overruling the motion to quash the venire.

R. S. Ford, who had been summoned as a juror in this case, failed to respond when his name "was called in open court," "which facts were not brought to the attention of defendant's counsel at the time; whereupon the court proceeded to impanel the jury, and, when the name of R. S. Ford was reached on the list, it was passed by, and his name not called by the sheriff," and, after the venire had been exhausted, the panel lacked one juror of completion. The appellant requested an attachment for the juror Ford, and a postponement of the trial until he could be brought into court. The attachment was awarded, but the postponement refused. This question was thoroughly considered by this court in Hudson's Case, 28 Tex. App. 323, 13 S. W. Rep. 388, and decided adversely to appellant's position assumed in this case. That decision is correct, and is here reaffirmed.

Another bill of exceptions found in the record recites that "E. R. Terry, on his voir dire, stated: `I have an opinion in regard to the guilt or innocence of the defendant. I don't think it would influence me in my verdict. I live eight miles S. W. of Hogg's house. Met defendant several times. Knew deceased. Have talked with some of the witnesses, but not about the case. Have an opinion in this case, and it will require evidence to remove it. This opinion would not influence me in rendering a verdict. If the evidence on the trial is as I have heard it, it would influence me. If the evidence is the same, my mind would be unchanged. I could render a fair and impartial verdict upon the evidence as testified to on the trial, and the law as given by the court, uninfluenced by my present opinion.'" He was challenged for cause, and the challenge was overruled. The juror was sworn in, and, it is supposed, sat upon the jury. Appellant exhausted his peremptory challenges. Under the statute, in order to disqualify a juror on account of a conclusion on his part as to the guilt or innocence of the party on trial, two things are necessary: (1) That there is in some way established in the mind of the juror a conclusion as to the guilt or innocence of such party; (2) that such conclusion will influence the juror in his action in finding a verdict. "Established" has no statutory definition given it by our statutes, but as usually understood it means settled, fixed, confirmed. Such is the definition found in Bouvier's Law Dictionary, as well as in Webster's Dictionary. Under the statute the conclusion formed by the juror must be such as will prevent him from finding a fair and impartial verdict in the case upon the law and evidence. The ultimatum of the matter is, can the juror give a fair and impartial verdict in the case upon the law and facts? If so, he is competent; if not, he is incompetent. Steagald v. State, 22 Tex. App. 464, 3 S. W. Rep. 771; Johnson v. State, 21 Tex. App. 368, 17 S. W. Rep. 252; Thompson v. State, 19 Tex. App. 611, 612; Kennedy v. State, Id. 619; Post v. State, 10 Tex. App. 591, 592. The juror does not disclose the facts that influenced him in forming his opinion. It is manifest that he did not receive his information from the witnesses,...