Whittington v. State

• Decision Date: 25 June 1919
• Docket Number: (No. 5461.)
• Parties: WHITTINGTON v. STATE.
• Court: Texas Court of Criminal Appeals

215 S.W. 456

WHITTINGTON v. STATE.

(No. 5461.)

Court of Criminal Appeals of Texas.

June 25, 1919.

On Motion for Rehearing, October 29, 1919.

Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.

A. J. Whittington was convicted of murder, and appeals. Affirmed.

Baskin, Dodge, Eastus & Ammerman, of Ft. Worth, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder, and given 15 years in the penitentiary.

A venire of 360 jurors was drawn; 134 of these were not summoned. The return of the sheriff is that they could not be found after diligent search. The bill of exceptions is very lengthy, and the return of the sheriff was attacked. There was no amendment made or offered to the return. It is shown by the testimony of quite a number of the jurors who were not summoned, but who testified in regard to the diligence of the sheriff, that they were residents of the county, and many of them of the city of Ft. Worth; that their names are shown in the telephone book and directory, and could easily have been found; but, if there was any inquiry made for them, or attempt to summon them, they were not aware of the fact. There was evidence that the attorneys for appellant secured a copy of the venire on Sunday morning, and immediately instituted an investigation with reference to some of the jurors, and ascertained by the use of the telephone that they were residents of the city and easily accessible, and were where they could easily be found. Here the matter rested. The venire was not quashed, nor return amended. Appellant was forced to trial. Out of this venire there was a jury secured. We are of opinion, under the cases of Brown v. State, 65 S. W. 912, Horn v. State, 50 Tex. Cr. R. 404, 97 S. W. 822, and Logan v. State, 54 Tex. Cr. R. 74, 111 S. W. 1028, that the court was in error in not quashing the venire. The writer deems it unnecessary, in view of the cited cases, to discuss the matter. In the Logan Case, supra, Judge Brooks, speaking for the court, said:

"This motion should have been sustained. It does not show that degree of diligence to secure the attendance of the venire which the law requires" —citing Horn v. State, supra.

It is not deemed necessary to set out the various grounds of the motion to quash. They all center in and around the main proposition that the diligence of the sheriff was not sufficient, and that by any ordinary diligence these jurors, or most of them, could have been had at the trial. Appellant had the right to have the jurors on the special venire summoned out of which to make his selection, and unless there is some tangible, real reason why these jurors were not summoned, the venire should be set aside and a new one ordered. The return of the sheriff is not sufficient; it merely states that the jurors could not be found after diligent inquiry or search.

The other bills of exception with reference to the formation of the jury and the overruling of appellant's challenges for cause are not discussed, as these matters will not arise upon another trial.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

MORROW, J.

In his return on the special venire writ, the sheriff states:

"And the following persons not found in Tarrant county after diligent search."

This was followed by list of 134 of the veniremen named in the writ. The statute touching the duty of the sheriff contains the following:

"The return shall state the names of those who have been summoned; and if any of those whose names are upon the list have not been summoned, the return shall state the diligence that has been used to summon them and the cause of the failure to summon them." C. C. P. art. 669.

Our understanding of the rulings of this court in construing this statute is that failure of the sheriff in making his return to comply with the terms of this statute is not sufficient ground for quashing the venire writ, and that in the absence of any challenge on the part of the accused of the sufficiency of the return, or of the diligence used by the sheriff to summon, that a general statement such as that used in the present instance, namely, "not found in Tarrant county after diligent search," is regarded as a substantial compliance with the requirement of the statute. The accused, however, is not bound to accept such general statement as conclusive. He may, by a motion, assail the truth of the statement that the absent jurors could not be found after diligent search, and charge that diligence has not in fact been made, and he may demand that the sheriff, in lieu of his conclusion that he has used diligence, make an amended return, showing at least in a general way what efforts he has made to summon the unsummoned jurors, and what his reasons are for failure to serve them with notice to appear in obedience to the writ, and where the sheriff fails to so amend his return, it is the duty of the court to require him to do so. In the case of Murray v. State, 21 Tex. App. 473, 1 S. W. 522, the facts show that seven of the jurymen on the return were stricken from the list and not served. The court said, speaking of the sheriff:

"But he failed to state in his return why this was done, and in case they had not been summoned then return was defective in failing to state the diligence that had been used to summon them, and the cause of the failure to summon them as required by law."

From the case of Rodriguez v. State, 23 Tex. App. 503, 5 S. W. 255, on the subject, we insert the following quotation:

"Willson, Judge. Nine several bills of exception were reserved by the defendant, relating to the rulings of the court upon motions of defendant to quash the special and additional venires, and returns of the sheriff thereon, and other rulings made in the formation of the jury. None of these exceptions appear to us to be well taken. It was proper for the court, upon the application of the district attorney, to have the sheriff to amend his return upon the special venire, and thus meet the defect complained of in defendant's motion to quash said venire. Murray v. State, 21 Tex. App. 466 ; Sterling v. State, 15 Tex. App. 249; Washington v. State, 8 Tex. App. 377. The amended return of the sheriff showed fully the diligence he had used in endeavoring to summon the jurors not summoned. The trial judge was satisfied with this amended return and the reasons therein stated for a failure to summon those not summoned, and we agree with the trial judge that the reasons stated for such failure are sufficient. It appears from the record that more than ordinary efforts were used by the...