White v. State

• Decision Date: 24 February 1904
• Citation: 78 S.W. 1066
• Parties: WHITE v. STATE.
• Court: Texas Court of Criminal Appeals

78 S.W. 1066

WHITE v.STATE.

Court of Criminal Appeals of Texas.

February 24, 1904.

Appeal from Parker County Court; D. M. Alexander, Judge.

J. S. White was convicted of violating the local option law, and appeals.Reversed.

R. B. Hood and Sam Shadle, for appellant.Jas. C. Wilson, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $50 and 20 days' confinement in the county jail; hence this appeal.

Appellant made a motion to quash the venire on the ground that said jurors had not been chosen and selected by a jury commission of Parker county, as the law directs, but that the judge had intentionally and purposely failed to appoint a jury commission to select jurors, not only for the present term of the court, but for many previous terms; that said action on the part of the judge was not accidental or through inadvertence or mistake, but was purposely done in order to place the selection of the jury entirely in the hands of the sheriff, his deputies, and the constable, whose fees and costs depend entirely upon a conviction in misdemeanor cases; that the jury furnished him was not the jury authorized by law.It seems that the court tried this issue and heard testimony thereon.J. E. Hodges testified that he had been county clerk of Parker county for three years next preceding the present term of the court; that at the last term of the county court of Parker county no jury commissioners were appointed to select jurors for the present term; that he had examined the records, and found that no jury commissioners had been appointed or chosen for several terms preceding the present term of the county court; that he was sure it has been as many as four terms, including the present term, in which no jury commissioners had been appointed or chosen.D. M. Alexander testified: "I am county judge of Parker county and have been for three years; am serving my second term.At the last term of the county court I did not select jury commissioners to select jurors for the present term of the county court.I have not appointed jury commissioners for several terms next preceding this term.I cannot say just how many, but three or four anyway.It was not through mistake, accident, or inadvertence that I did not appoint jury commissioners.My failure to appoint jury commissioners was intentionally and purposely done.I knew they were not appointed.By experience I had found that juries selected by jury commissioners would not attend court, frequently because the docket was usually light, and often did not require them but one or two days; therefore it saved money to the county not to appoint jury commissioners, and let the sheriff summon the jury.Usually about half the jury had to be summoned by the sheriff anyway."Bratton testified that he was sheriff of Parker county, and had been for three years; did not summon more than one or two men on the venire for this week.Doggett, constable of this precinct, summoned the jury.Doggett is not a deputy sheriff of this county.The sheriff stated that Doggett was his jailer, and lives in the jail.R. B. Hood, attorney for defendant, testified that he was county attorney of Parker county at the term before the present one, but never knew jurors to be selected as these were selected but one time; and, after court adjourned on that occasion, he asked Judge Alexander why he did not appoint jury commissioners, "and, if the judge or any one else wants to know what the reasons were he gave, I will state what he told me."The county attorney here asked Mr. Hood, "Do you claim that the right of your client, J. S. White, will be in any way injured by his being forced to trial by a jury selected from the venire this day chosen, or that this trial would be an unfair one to his client?" to which Mr. Hood answered, "No; I make no such claim.I just say that this manner of selecting a jury is illegal, and that this venire, on account of the manner of its selection, should be quashed."The court, after hearing the motion to quash, overruled the same, and defendant excepted.

The state contends that this question cannot be reached by a motion, such as this, which is in the nature of a motion to quash the array; that said motion was not sworn to, etc.; that appellant was only guarantied by the Constitution a fair jury, and he admits that he had such jury; and therefore the court did not err in refusing to sustain the motion to quash.As we understand articles 661, 696, Code Cr. Proc., a defendant may challenge the array for the following causes only: that the officer summoning the jury has acted corruptly, and has willfully...