Walker v. State

Decision Date17 December 1924
Docket Number(No. 8693.)
Citation267 S.W. 988
CourtTexas Court of Criminal Appeals

Appeal from District Court, Young County; Walter F. Schenck, Judge.

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

Binkley & Binkley, of Graham, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.


Conviction is for murder, with punishment assessed at confinement in the penitentiary for 35 years.

Appellant filed an instrument styled a "motion to quash the venire;" which had been drawn from which to select a jury. By whatever name called it was in fact a challenge to the array of jurors. As one ground of the motion it was averred that one of the jury commissioners which selected the jurors had a suit pending in the district court which required the intervention of a jury, which fact is claimed to have disqualified the commissioner, under article 5122, R. C. S., and article 384, C. C. P. The "Young County Lumber Company," a partnership, had a suit pending, and one of the jury commissioners was one of the partners in such concern. Whittle v. State, 43 Tex. Cr. R. 468, 66 S. W. 771, and Bryant v. State (Tex. Cr. App.) 260 S. W. 598, are directly in point, and authority against the contention that for the reason urged the venire should have been set aside. The other objection to the venire was based upon the averment that the jury commissioners selected some qualified jurors from the list furnished them, but disregarded and omitted other qualified jurors. From an examination of the evidence heard upon the motion we perceive nothing to indicate any abuse of discretion lodged in the jury commissioners, under the provisions of the statute for their guidance. Article 5127, Vernon's Sayles' C. S. It will further be observed that neither ground of objection is embraced in articles 679 and 680, C. C. P. permitting a challenge to the array of jurors for certain named reasons. Article 681, C. C. P., explicitly denies the right to challenge the array when the jurors summoned have been selected by jury commissioners.

Appellant sought to quash the indictment upon the same grounds urged in an effort to set aside the venire, which have just been considered in discussing bill of exception No. 1. It was really an indirect attack upon the qualification and legality of the grand jury. The time and attention of this court is so frequently demanded in considering efforts to impeach the acts of grand jurors, and to set aside indictments, which attacks are not made at the time, nor in the manner, nor for the only reasons specified in articles 408 to 413, and article 570, C. C. P., that we found it advisable to review said articles and the authorities construing them in the recent case of Powell v. State, No. 8585, opinion November 19, 1924 (269 S. W. ___). We undertook in that opinion to state what we understood to be the exceptions to the restrictions and operation of the articles of the Code of Procedure just referred to, and we deem it unnecessary at this time to write further upon the subject. Appellant fails to bring himself within any exception which would permit an attack upon the action of the grand jury through a motion to quash the indictment. His effort to excuse himself from failing to present a challenge to the array of grand jurors does not meet the requirement that if in jail an accused must make request that he be brought into court for that purpose. Article 409, C. C. P.; Brown v. State, 32 Tex. Cr. R. 119, 22 S. W. 596; Barkman v. State, 41 Tex. Cr. R. 105, 52 S. W. 73; and other authorities cited on page 180, Vernon's Cr. S., vol. 2. However, we deem this of little importance, as the record reveals that no ground of challenge to the array would have been available even had accused been present in court. Hickox v. State, 95 Tex. Cr. R. 173, 253 S. W. 823.

The indictment was returned by a grand jury organized by the district court of the Ninty-Second judicial district in Young county. It is asserted (a) that said court was of limited jurisdiction and had no power to organize a grand jury because not specifically authorized to do so by the act creating it, and (b) that the act of the Legislature creating said court was void because its existence was limited to two years. Carter v. M., K. & T. Ry. Co., 106 Tex. 137, 157 S. W. 1169, is direct authority against the last proposition. The court in question was created by Acts 38th Leg. c. 76, Reg. Sess. p. 162. In section 2 of said act is found this language:

"The jurisdiction of said new district court of Young county shall extend to and include all civil and all criminal cases, proceedings and matters of which district courts of this state have or may be given jurisdiction by the Constitution or by the laws of this state."

And again, in section 9, it is provided:

"The civil and criminal jurisdiction conferred by this act upon said new district court of Young county, Ninety-Second judicial district, shall be treated and held to be, concurrent with the civil and criminal jurisdiction now vested in said district court of Young county, Thirtieth judicial district of Texas."

From the language quoted we fall to perceive any limitation upon the power of the court preventing it from doing anything which any other district court could do, including the organization of a grand jury.

Appellant requested a change of venue. The evidence taken upon the motion has been examined carefully. It does not occur to us that the trial court abused his discretion in overruling the application. Some prejudice against appellant may have existed in and around Graham where the homicide took place, but it was not shown to have extended generally to other portions of the county. We think appellant did not discharge the burden resting upon him to show the existence of such prejudice as rendered it improbable that he could obtain a fair and impartial trial. See Carlile v. State, 96 Tex. Cr. R. 37, 255 S. W. 990, and authorities therein referred to. We had passed upon the merit of the matter before noticing that the statement of facts, bringing the evidence upon this subject forward, was not filed in the court below until April 23, 1924. Article 634, C. C. P., requires that it be filed during the term of court at which the order was made. Court adjourned on January 26th. Even if the question presented had merit we would be precluded from considering it under the statute.

Appellant requested a special charge advising the jury that if he had been informed that deceased had made threats to take appellant's life, and believed such information to be true, he would have the right to act on such information, although the jury should find that no such threats were in fact made. This subject seems to have been fully covered in the seventh paragraph of the main charge, and the refusal of the special charge was not erroneous.

Complaint is made at the refusal of a special charge to the effect that appellant had the right to continue to shoot as long as it reasonably appeared to him that danger existed. Such charge is only called for where the facts make it applicable. This is illustrated by the authorities to which we are referred, viz., Overcash v. State, 67 Tex. Cr. R. 181, 148 S. W. 703; Clark v. State, 56 Tex. Cr. R. 295, 120 S. W. 179; Best v. State, 61 Tex. Cr. R. 554, 135 S. W. 582; Smith v. State, 57 Tex. Cr. R. 455, 123 S. W. 701. We have not detected any evidence in the present case calling for such instruction, nor is our attention directed to such evidence in appellant's brief. Only two or three shots were fired by accused. They seem to have been discharged rapidly. No change in position of either appellant or deceased took place during the shooting. Woodward v. State, 54 Tex. Cr. R. 89, 111 S. W. 941; Medford v. State, 89 Tex. Cr. R. 1, 229 S. W. 504.

The court omitted from his charge any instruction relative to the law of manslaughter. A special charge submitting this issue was requested and refused. It is the alleged error based on this action of the court that gives us most concern. We will not undertake to set out the evidence in detail, but only so much of it as occurs to be pertinent to the question just suggested. Appellant lived at and conducted a garage about a mile from the city of Graham. Deceased lived some 100 yards east of this garage. Appellant had furnished some money, which had been used by deceased in the purchase of land. Appellant claims this land had been sold by deceased without making provision for the repayment to appellant of the money furnished by him. The killing occurred on Monday morning at a point some 40 steps from the garage. Deceased was driving a truck behind which had been hitched a sled with a water barrel on it; he was apparently on the way to a well to haul a barrel of water. It was a controversy between the state and appellant whether deceased stopped his truck and motioned for appellant to come out of the garage, or whether appellant came out and stopped the truck. It is undisputed that deceased was sitting in the truck behind the driving wheel at the time the shots were fired by appellant, who was standing on the ground near the front of the truck. It was also established that some words passed between appellant and deceased. A small boy who was on the sled heard them talking but does not...

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11 cases
  • Philen v. State
    • United States
    • Texas Court of Criminal Appeals
    • December 5, 1984
    ...it being a continuous and rapid transaction. See also Barkley v. State, 152 Tex.Cr.R. 376, 214 S.W.2d 287 (1948); Walker v. State, 98 Tex.Cr.R. 663, 267 S.W. 988 (1924). In McElroy v. State, 455 S.W.2d 223 (Tex.Cr.App.1970), it was not error to refuse the charge where there was no showing t......
  • De Wolf v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 28, 1952
    ...vitiate the proceedings of the commissioners when the other members of the board are qualified.' To the same effect is Walker v. State, 98 Tex.Cr. 663, 267 S.W. 988. This rule was followed in Viduarri v. Bruni, Tex.Civ.App., 179 S.W.2d 818, involving the jury wheel and the sheriff's partici......
  • McElroy v. State
    • United States
    • Texas Court of Criminal Appeals
    • April 29, 1970
    ...intermission, it being a continuous and rapid transaction. See also Barkley v. State, Tex.Cr.App., 214 S.W.2d 287; Walker v. State, 98 Tex.Cr.R. 663, 267 S.W. 988. Though in Smith v. State, Tex.Cr.App., 411 S.W.2d 548, it was held that the defendant may, under the facts of continuing danger......
  • Goodman v. State, 19300.
    • United States
    • Texas Court of Criminal Appeals
    • February 16, 1938
    ...of the combatants, and any noticeable intermission between the shots; it was a continuous and rapid transaction. See Walker v. State, 98 Tex.Cr.R. 663, 267 S.W. 988. By bill of exception No. 1, appellant complains of the following argument of the state's attorney, to wit: "The price of murd......
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