Walker v. State

• Citation: 283 S.W. 787
• Decision Date: 17 March 1926
• Docket Number: (No. 9837.)
• Parties: WALKER v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

283 S.W. 787

WALKER v. STATE.

(No. 9837.)

Court of Criminal Appeals of Texas.

March 17, 1926.

Rehearing Denied April 28, 1926.

Commissioners' Decision.

Appeal from District Court, Young County; H. R. Wilson, Judge.

H. C. Walker was convicted of murder, and he appeals. Affirmed.

See, also, 98 Tex. Cr. R. 663, 267 S. W. 988.

Frank J. Ford, of Decatur, for appellant.

Marshall & King, of Graham, Sam D. Stinson, State's Atty., of Austin, and Nat Gentry Jr., Asst. State's Atty., of Tyler, for the State.

BERRY, J.

The offense is murder, and the punishment is imprisonment in the penitentiary for life.

There are but two bills of exceptions in the record. Bill No. 1 complains at the court's action in overruling his challenge to three of the jurors, for the reason that said jurors on their voir dire answered that they had conscientious scruples against the infliction of the death penalty as a punishment for crime. The bill simply shows that defendant challenged said jurors for that reason and his challenge for cause was by the court overruled. The bill of exceptions nowhere shows that defendant's peremptory challenges were exhausted and it fails to show that an objectionable juror sat on the trial of the case. This bill fails to show any error. Nairn v. State (Tex. Cr. App.) 45 S. W. 704; Mancillas v. State (Tex. Cr. App.) 76 S. W. 469.

Bill of exceptions No. 2 complains at the court's action in refusing to quash the writ of special venire, for the reason that the jurors were not served in person, but were served by a postal card. This bill is qualified by the court with the statement that the whole venire was present upon the call of this case, except those who had been excused by counsel or by the court for legal reasons, or who had removed from the county; there being, perhaps, two or three of the latter.

"The purpose of the personal summons is to procure the attendance of the jurors. When that is accomplished by an irregular summons, the form of summons is not available as a ground for quashing the writ, unless some injury is shown." Brown v. State, 87 Tex. Cr. R. 261, 222 S. W. 255, citing Whittington v. State, 86 Tex. Cr. R. 1, 215 S. W. 457. 12 American & English Encyclopedia of Pleading and Practice, p. 234.

There being no errors of procedure found in the record, and the evidence being sufficient to support the verdict, the judgment is in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The correctness of the disposition of appellant's complaint in bill of exceptions No. 1 is called in question. It is believed that, upon the reasons stated in the original opinion, the bill fails to show error. All that can be ascertained from the bill is that three of the veniremen declared on their voir dire that they had conscientious scruples against the infliction of the death penalty as a punishment for crime. The appellant's challenge for cause was overruled, but he exercised peremptory challenges. In selecting the jury all of his peremptory challenges were exhausted. If the court's ruling was wrong, the facts stated in the bill would not require a reversal, for the reason that it is made apparent that the veniremen did not sit upon the jury. It does not appear that any juror who was objectionable was impaneled. As we understand it, the precedents are to this effect: If it appears from the bill of exceptions that a good challenge for cause of a juror was erroneously overruled, the peremptory challenges of the appellant were exhausted, and...