Trotter v. State

• Decision Date: 10 June 1896
• Citation: 36 S.W. 278
• Parties: TROTTER v. STATE.
• Court: Texas Court of Criminal Appeals

36 S.W. 278

TROTTER v. STATE.

Court of Criminal Appeals of Texas.

June 10, 1896.

Appeal from district court, Bandera county; Eugene Archer, Judge.

Albert L. Trotter was convicted of murder in the second degree, and appeals. Affirmed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and given 15 years in the penitentiary, and prosecutes this appeal.

1. Appellant excepted to the action of the court in overruling his challenge for cause as to the juror D. C. Cox. As to said juror the bill shows as follows: "The court propounded to the juror the statutory questions, to wit: From hearsay or otherwise, is there established in your mind such a conclusion as to the guilt or innocence of the defendant as would influence you in finding a verdict?' The juror replied, I have formed an opinion.' The court then asked the juror `if it was such an opinion as would influence his action in finding a verdict.' The juror said, `I do not think it would.' The court then told the juror he would have to say positively whether it would or not. The juror then said it would not. Counsel for the defendant then asked the juror if he still had that opinion. He replied that he still had it; and in answer to further questions by counsel for the defendant the juror said, `I cannot go into the jury box free from that opinion, and I will have to hear evidence before I can change that opinion.' The court then asked the juror if his opinion was formed from hearing the witnesses talk about the case or from rumor and hearsay. The juror said it was from rumor and hearsay, and that, notwithstanding the opinion, he could go into the jury box and render an impartial verdict according to the law and the evidence. Thereupon the court, over the objection of the defendant, held the juror competent, and the defendant was compelled to exhaust a peremptory challenge upon said juror, and the defendant afterwards exhausted all of his peremptory challenges before the jury was formed." This action of the court is assigned as error. Under the former decisions of this court we hold that the juror was competent. See Suit v. State, 30 Tex. App. 322, 17 S. W. 458.

2. The second bill of exceptions relates to the sustaining of a challenge to a juror, made by the district attorney. The juror, in response to an examination by the court, fully qualified as a juror, and stated that he had formed no opinion as to the guilt or innocence of the defendant that would influence him in finding a verdict. The district attorney then asked said juror if he had formed any opinion as to the guilt or innocence of the defendant, to which the juror replied, "I have." The district attorney then asked the juror if he had formed that opinion from talking to the witnesses in the case. The juror replied that he had. The court then asked the juror, "Do you say that you formed that opinion from conversing with the witnesses in the case?" The juror replied, "I do." Thereupon the court sustained the challenge of the state for cause, and said juror was discharged, to which the defendant excepted. The statute seems to make a difference between an opinion formed by a juror from hearsay merely and where the juror has formed his opinion from having heard the testimony, or from having conversed with the witnesses in the case. This distinction has been recognized by this court. See Shannon v. State, 34 Tex. Cr. R. 5, 28 S. W. 540. No injury is shown to appellant in the action of the court, and there was no error in sustaining the challenge for cause.

3. Counsel for appellant excepted to the remarks of the district attorney when the witnesses were placed under the rule. Said remarks were as follows: "I demand the strict rule, because I believe there are witnesses here who would not regard the rule unless strictly enforced." This remark did not single out the defendant's witnesses, but was applied to all of the witnesses. It was not a proper remark to suggest that all or any of the witnesses would not comply with the rule unless it was strictly enforced. When the district attorney had asked for the rule, and requested the court to instruct the witnesses in regard thereto, he had performed his duty; and when the district attorney had done this he should stop. However, we cannot see how the remark may have affected the rights of the appellant injuriously, and the bill does not show that it had this effect.

4. On the trial of the case the state proved by the witness Robert Allsop that after the difficulty the defendant left the scene of the difficulty; that he (Allsop) left the body of his brother in the road where he had been killed, and started off to get some one to come and stay with his brother's body; that John Criswell, who was with the defendant at the time of the homicide, and who had come there with him, had ridden off several hundred yards, and that the said Criswell remained there on his horse, as long as witness was in sight, and he stated that Criswell was "watching him." This latter expression, on objection by appellant, was excluded. Appellant, however, contends that it was improper testimony, and was calculated to affect the defendant injuriously, and its effect could not be...