Wheeler v. State

• Decision Date: 28 April 1948
• Docket Number: No. 23949.,23949.
• Citation: 212 S.W.2d 169
• Parties: WHEELER v. STATE.
• Court: Texas Court of Criminal Appeals

212 S.W.2d 169

WHEELER v. STATE.

No. 23949.

Court of Criminal Appeals of Texas.

April 28, 1948.

Rehearing Denied June 23, 1945.

Appeal from District Court, Angelina County; H. T. Brown, Judge.

Floyd Wheeler was convicted of murder without malice, and he appeals.

Judgment affirmed.

E. J. Conn and B. L. Collins, both of Lufkin, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of the murder without malice of E. B. (Jack) Stephenson, and by the jury given a term of three years in the penitentiary.

The facts show a killing over a trivial matter and would have supported a verdict of a killing with malice, or again, a killing in self-defense. However, this matter was settled by the jury, and we see no reason to set forth the facts in detail.

Appellant's main contention herein relates to the trial court's action in excusing from the jury venire of 120 men the twelve men who were selected and serving on another jury in a civil case which had been on trial the Friday preceding the calling of the present case on Monday. It is shown that on such Friday the trial court had adjourned the trial of this civil case until the Wednesday of the week in which this cause was called and instructed these jurors that they need not appear until such Wednesday, at which time he would continue to try the civil cause at nighttime, if necessary. Under these instructions these twelve jurors did not appear upon the call of the present case, and at such time the trial court informed appellant and his counsel that he (the court) had excused such twelve jurors. When the first one of said jurors, Hugh Tims, was called, appellant excepted to the trial court's action in excusing this juror without the presence and consent of appellant and without such juror having complied with the provisions of the law as set forth in Article 605, C.C.P. The bill of exceptions then states that appellant requested that Mr. Tims be called and brought into court and presented in the order in which his name appeared on the venire list furnished appellant. This the trial court refused to do and an exception was reserved thereto. A bill was properly presented to the court and approved with certain qualifications showing certain alleged facts, to which qualification the appellant excepted, and the trial court failed to file his own bill, thus leaving us in the position of having to consider the original bill without the trial court's qualification thereto. Appellant insists that the trial court's action herein is governed by Art. 605, C.C.P., which reads as follows:

"Any person summoned as a juror who is exempt by law from jury service, may, if he desires to claim his exemption, make an affidavit stating his exemption, and file it at any time before the convening of said court with the clerk thereof, which shall be sufficient excuse without appearing in person. The affidavit may be sworn to before the officer summoning such juror."

Because of the exception to the court's qualification, we are left without any reason or explanation in the bill as to why this juror, Hugh Tims, and the others were not presented to appellant when their names were reached and called on the venire.

Under the rules, when a contradiction is found presented between the bill of exceptions and the statement of facts, the recitations in the bill of exceptions control. However, in this instance, we do not find a contradiction between such. We merely find the bill of exceptions failing to set forth the full facts and reasons of the trial court wherein he failed to have Mr. Tims presented to appellant as a possible juror at the time his name was called in the process of the selection of a jury.

In order that this matter may be fully understood by us, we have a precedent that allows us to look to the statement of facts.

In the case of Dixon v. State, 91 Tex. Cr.R. 217, 238 S.W. 227, 230, it seems that during the selection of the jury, the name of a state officer was called as a prospective juror. Prior to the trial, this person had informed the trial judge of his exemption and that he wished to take advantage thereof. To this the judge gave his consent and excused the juror without requiring an affidavit from him. When the name of the juror was reached, the accused insisted upon process for him, which was refused. It was there held:

"The action of the court was erroneous, but probably not an adequate reason for reversal. It was shown upon hearing of the motion for new trial that the facts establishing the exemption of the juror really existed; that he claimed his exemption, and made this known to the court before the trial."

Again, in Watkins v. State, 113 Tex.Cr. R. 488, 22 S.W.2d 460, 461, it is said:

"The statutes relating to the formation of juries have always been regarded as largely directory, and a failure to follow the exact letter of the statute does not always call for a reversal. There is nothing in the bill bringing the present complaint forward which negatives the idea that the seven jurors who had been excused had not complied with said article 605 and filed affidavits of exemption; furthermore, there is no claim that the jurors did not have a legal excuse. We must presume, in the absence of a showing to the contrary, that they did have, else the court would not have excused them. The sole complaint is that the court excused them in appellant's absence. There is nothing to indicate that appellant thought the court had made a mistake in excusing any of the seven jurors, or that, if brought into court in appellant's presence, any different result would have been reached with reference to them."

Again, in Thuston v. State, 18 Tex.App. 26, 32, it is said:

"And if upon the call of the list a juror is absent, and it be made to appear satisfactorily that his absence is from sickness or other unavoidable cause, the court may undoubtedly excuse his attendance. But, as stated above, the court cannot excuse in any instance, if not present, until his name has been called, nor then, unless the cause is unavoidable or the defendant consents."

The Thuston case, supra, was decided prior to the enactment of Art. 605, C.C.P., in 1907. Undoubtedly it was never contemplated that a court could or should do an impossible or a useless thing; that he should order a prospective juror to be brought from a sick bed into open court and excused by the court on account of such sickness, nor from any other unavoidable matter that would offer a proper excuse, especially where such appearance would endanger his health or that of others. This rule was established prior to 1907, and the rule of actual presence of the contemplated juror was further relaxed in so far as a legal exemption was concerned by Art. 605, supra. See Hill v. State, 10 Tex.App. 618; Foster v. State, 8 Tex. App. 248.

In the early case of Murray v. State, 21 Tex.App. 466, 1 S.W. 522, it was held that the many statutes relative to the method and manner of the formation of a jury in a capital felony case are but procedural and are mainly directory and not mandatory, citing the old Articles 619, 620, and 621, C.C.P. The old cited Article 619 is now Art. 603, and the old Art. 620 is now Art. 604, and the old Art. 621 is now Art. 606, C.C.P. In the Murray case, supra, the question arose as to what constituted a mandatory statute, and reference was made to the case of Wilkins v. State, 15 Tex.App. 420, in which case there was adopted the rule laid down by Justice Moore in the case of Campbell v. State, 42 Tex. 591, as follows:

"Whenever there is reason to apprehend that injury may have resulted to the defendant, especially in a case of felony, from the failure to observe directions given the court by the Legislature, we think, unquestionably, the judgment should be reversed.

See the case of Wilkins v. State, supra.

Now, let us turn to Bill of Exceptions No. 1 and see what the same shows. It is shown therein that when venireman No. 8 on the list, Hugh Tims, was called, the trial court informed appellant's attorneys that he had excused Mr. Tims prior to the calling of this case and had advised him not to report for jury service. Whereupon, appellant objected to such action of the court in thus excusing such venireman without the consent of defendant's counsel and without said venireman having filed an affidavit with the clerk of the court showing a legal excuse why he should not serve, or showing a legal disqualification as to why he should not serve prior to said date, and defendant thereupon moved and requested the court to have such venireman brought in so that he might be tested as a juror in said cause, and defendant given the opportunity to accept said venireman as a juror unless peremptorily challenged by the State or unless challenged for cause; that defendant's counsel made known to the court that said juror would be acceptable to him if no disqualification was shown, and the court, in all things, refused to have such venireman brought into court and tested as a juror and thereby deprived defendant of his right to have such juror accepted as a juror to try said cause, and compelled him by reason thereof to accept jurors who were less desirable to him as jurors to try this cause, all greatly to his injury, etc. The trial court qualified this bill, setting forth his reasons relative to the discharge of such juror, but on account of appellant's attorneys taking exception to the qualification of this bill, we are precluded from a consideration of such qualification. The bill itself is meager and incomplete in that same does not give the full facts relative to the court's ruling, nor does it enlighten us as to when or why this juror was excused. In such event, it is permissible, in order for us to determine the probable effect of the matters complained of therein, to make an examination of the statement of facts. See Daigle v. State, 112 Tex.Cr.R. 370, 17 S.W.2d...