Thomas v. State

• Decision Date: 25 April 1906
• Citation: 95 S.W. 1069
• Parties: THOMAS v. STATE.
• Court: Texas Court of Criminal Appeals

95 S.W. 1069

THOMAS v. STATE.

Court of Criminal Appeals of Texas.

April 25, 1906.

Rehearing Denied June 27, 1906.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Harris County; J. K. P. Gillaspie, Judge.

Marcellus Thomas was convicted of murder, and he appeals. Affirmed.

Noah Allen, for appellant. E. T. Branch, Brockman & Kahn, and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of the murder of John Blair, and his punishment assessed at death.

The proof, which was uncontradicted, showed that late on the afternoon of October 9, 1905, John Blair and Shropshire were in the town of Spring, Harris county, and started to their home, near Wilburton, some five or six miles north of Spring. There is testimony tending to show that they were drinking some, and that they bought some beer in Spring and carried it with them. Both were riding horseback. That they left Spring late in the afternoon, and pursued their journey homeward in a slow gait. When they had gotten about a mile out of the town of Spring, and some 400 or 500 yards north of the house of appellant, at a point in the Wilburton Road, both men were killed by appellant. Two shots were fired in rapid succession at close range. This was either at nightfall, or directly thereafter. The state's theory is that, on their journey towards home, as they were riding slowly along the road, and about a half mile from Spring, they were overtaken by appellant, who was also riding horseback. He rode along behind them, and finally one of them asked who he was, and he replied, "Marcellus Thomas." They understood him to say, "Dr. Sellars." One of them replied he was not Dr. Sellars, that he was a negro, and they requested him to ride in advance of them instead of behind them. This enraged appellant, and he rode on in advance of them to his house (which was on the road some 400 or 500 yards ahead), procured his shotgun, proceeded up the road, ahead of said parties, and lay in wait for them some 300 or 400 yards north of his house, at a point where the timber approached the road, and, when Blair and Shropshire approached the point on their horses, he shot both of them, firing two shots in rapid succession, one at each, which inflicted mortal wounds, and was the cause of the death of both of said parties. Blair was found some 200 yards from the place where the shooting occurred, and Shropshire was found some 400 or 500 yards distant, south, towards Spring. Both were taken to Spring on that night, and medical attention given them. Both died in a day or two after the shooting. Before Blair died he made a dying declaration, which is in accord with the state's theory of the homicide. Appellant's theory is to the effect that he came from Spring late in the afternoon, and, after deceased Blair and Shropshire had left, they preceding him, and having passed Camille Thomas (who lived on the road on the route the parties were traveling) some half an hour before he reached there. That he had an engagement to get a wedge from John Bird, who lived about a mile up the road, in the same direction that said parties were traveling. That, after stopping at Camille Thomas' awhile and conversing, he went on up the road to his own house, got his shotgun, and pursued his journey, in order to get said wedge, which he expected to use the next day. That he overtook Blair and Shropshire along the road, and they accosted him, asked him who he was. He told them he was Marcellus Thomas. They understood him to say, "Dr. Sellars," and told him he was a damn lying son of a bitch, and otherwise abused him, and finally took after him and ran him some 250 yards down the road. He then succeeded in getting into the timber and eluding them. That he remained in the timber some 25 minutes, giving them time to get ahead, so that he could proceed after his wedge. That he returned to the road, and in pursuance of his journey came suddenly upon Blair and Shropshire, who had stopped in the road. Blair was off his horse on the ground, and Shropshire was on his horse. They immediately attacked him; Shropshire striking at him, as appellant believed with some weapon, and the other grabbing his bridle reins. Appellant believed that they intended to kill him, and shot the one on the horse first, and then turned his gun on the one who held his bridle reins. That he did not go home that night, but went to Westfield, and stayed all night with a relative, where he was arrested the next morning. This is a sufficient statement of the case in order to discuss the questions raised.

Appellant filed a motion to quash the indictment because he was not given an opportunity to challenge the array of the grand jury, and he also made a motion to quash the indictment on the ground that in the formation of the grand jury, he being a negro, his race was discriminated against in the impanelment of said grand jury. He also filed a motion to quash the special venire, because his race and color were discriminated against in selecting and drawing said special venire. Under our procedure his motion to quash the indictment, on the ground that he was not afforded an opportunity to challenge the array of the grand jury, is not well taken. Appellant was confined in jail at the time the grand jury was impaneled, and he should have made a request at that time to be brought into court so as to challenge the array. If he failed to make such request, he cannot be heard afterwards to complain. Kemp. v. State, 11 Tex. App. 174; Brown v. State, 32 Tex. Cr. R. 119, 22 S. W. 596; Barkman v. State (Tex. Cr. App.) 52 S. W. 69. But it seems that, notwithstanding his failure to challenge the array, he can still present his motion to quash the indicment, because his race was discriminated against in the formation of the grand jury which returned the bill. See Carter v. State, 39 Tex. Cr. R. 345, 46 S. W. 236, 48 S. W. 508; Id., 177 U. S. 442, 20 Sup. Ct. 687, 44 L. Ed. 839.

Appellant's motions both to quash the indictment on account of race discrimination and to quash the special venire on the same account are in proper form, and, under the decisions of the Supreme Court of the United States, were made in due time. The court entertained said motions, and heard evidence thereon. According to the evidence, we gather that the population of Harris county is about 90,000, and, of this number, some 70,000 are white, and 20,000 are negroes, or of African descent. There are some 10,000 or 12,000 voters in Harris county, and of these from 20 per cent. to 25 per cent. are negroes; that is, from 3,000 to 4,000 negro voters. According to some witnesses about 25 per cent., and according to others not over 10 per cent., are qualified voters; that is, according to this estimate there are from 300 to 1,000 negroes who are qualified to do jury service in Harris county. Our statutes require that at each term of the court the judge shall appoint three jury commissioners for the selection of grand and petit jurors. It is shown that no persons of the negro race have ever been appointed jury commissioners in Harris county. It is further shown that, until within the last four or five years, or until the decision of the Supreme Court of the United States in the Carter Case, supra, and Whitney Case, from Harris county, that no negro grand jurors or petit jurors were drawn in Harris county. That since then, or within the last four or five years, the jury commissioners appointed by the judge were instructed by him not to discriminate against the negro race in the selection of jurors. The testimony tends to show that, as a rule, one member of the negro race was drawn for service on the grand jury, and from one to two or three negroes were drawn for service on each week of the petit jury. The method of selecting grand jurors under our law is through the commissioners appointed by the district judge, and is covered by article 378, Code Cr. Proc. 1895. These commissioners select the grand jurors from the body of the county, basing their selection on their knowledge of the men selected. Said grand jurors must be able to read and write, and must be of good moral character; and, besides, qualified citizens of the state and of the county, and qualified to vote in said county, must also be freeholders within the state or householders within the county. From the 16 selected by the commissioners, 12 are ultimately impaneled as a grand jury by the district judge at the convening of each term of the court. As to the special venire, it is drawn from the entire jury for the term; the names being placed in a box and drawn therefrom by the clerk. The number required by the court, when so drawn, constitutes the special venire in each case. It is shown that, under the plan pursued, one negro was impaneled on the grand jury, which found the bill of indictment against appellant. It is further shown that no negro was drawn on his special venire. There is a good deal of testimony in the record tending to show that negroes, as a general rule, were not as well qualified to sit on juries as persons of the white race, either lacking in sufficient intelligence or from a want of morals. Besides this, there is a good deal of testimony in the record showing who are exempt from jury service, under article 3142, Sayles' Ann. Civ. St. 1897. Among these are all persons over 60 years of age—ministers of the Gospel, engaged in the discharge of their duties, and physicians, attorneys, publishers of newspapers, schoolmasters, druggists, undertakers, etc. From the testimony in regard to these exemptions it would appear that a greater pro rata of negroes are exempt than of the white race.

Two of the jury commissioners were placed on the stand, and we quote from their testimony. Rothwell testified he was a commissioner at said term and remembered of one grand juror being drawn who was a negro, and that they drew one negro petit juror for each week of the term. He was asked why...