Whittle v. State

Decision Date19 February 1902
Citation66 S.W. 771
PartiesWHITTLE v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from district court, Hill county; W. Poindexter, Judge.

J. W. Whittle was convicted of forgery, and appeals. Reversed.

Johnson & Stollenwerck, for appellant. J. S. Callicutt and Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of seven years.

Appellant moved to quash the array of jurors on the ground that one of the commissioners who drew the jury for that term of court was interested in three certain civil suits, being a party thereto; said suits requiring the intervention of a jury, and being on the jury docket; and, further, that said jury commissioners were not residents of different portions of the county. A reference to article 3145, Rev. Civ. St., which prescribes the qualification of jury commissioners, shows, among other things, that they should be residents of different portions of the county, and that they shall have no suit in said court which requires the intervention of a jury. If the expression "shall be," in connection with the qualification of jury commissioners, is given a mandatory meaning, then a jury drawn by commissioners not possessing such qualifications would not be a legal jury, and the verdict rendered by such a body would not be a legal verdict. For instance, if one or more jury commissioners should be impaneled to select a jury who are not intelligent citizens, and unable to read and write, and not qualified jurors and freeholders of the county, are not residents of different portions of the county, or one or more of them happen to have a suit on the jury docket, then it would follow that all of the verdicts rendered by a jury so drawn could be vitiated. It has been held in a number of cases, where the language was equally as strong, prescribing the qualification of jurors,—for instance, that the juror shall be a freeholder,—this could not avail a defendant after verdict on motion for new trial. He must in such case go further, and show that probable injury resulted to him. Leeper v. State, 29 Tex. App. 63, 14 S. W. 398; Williamson v. State, 36 Tex. Cr. R. 225, 36 S. W. 444; Mays v. State, 36 Tex. Cr. R. 437, 37 S. W. 721. It has also been held that it was too late after verdict to raise the question, where a juror was not a citizen of the state 12 months prior to his service. Trueblood v. State, 1 Tex. App. 650: Sutton v. State, 31 Tex. Cr. R. 297, 20 S. W. 564. These cases, however, only establish that the objection comes too late after verdict. In this case the objection was made to the jury on their impanelment, so that we are squarely confronted with the question whether or not the refusal of the court to entertain the motion at the earliest moment when it could be made was error. If we so hold, unless each of the commissioners shall possess all of the qualifications prescribed, then in every case in which a jury is tendered, drawn by said commissioners, the jury list should be set aside, because the language in reference to each clause prescribing the qualifications of commissioners is equally mandatory; and because two of the commissioners should be residents of the same portion of the county would equally disqualify the jury drawn, as if it should turn out that they should not be qualified jurors and freeholders of the county. In order to impose this test, it is said that the rule that injury must be shown before a party can avail himself of the objections to the commissioners would be impossible that, the law having prescribed the machinery for the selection of the jury, he has suffered a legal injury, though it may not be possible to show any actual injury. It occurs to us, if, because the machinery provided for the selection of jury commissioners has not been strictly followed, a jury drawn by them should be set aside on the ground that legal injury will be presumed, it would be productive of such confusion as to produce a public hardship, which ought not be brought about except upon the strongest reasons. Evidently the lawmakers had this in view when they provided for the character of challenge to the array. Article 660, White's Ann. Code Cr. Proc., provides for a challenge to the array on the part of the state; and article 661 provides for a challenge on the part of defendant, to the effect that the officer summoning the jury has acted corruptly, and has willfully summoned persons upon the jury known to be prejudiced against defendant, with the view to cause him to be convicted. Article 662 provides that the two preceding articles do not apply when the jurors summoned are those who have been selected by jury commissioners. In such case no challenge to the array is allowed. Now, the challenge to the jurors in this case, though presented as a motion to quash, was simply a challenge to the array; and, if article 662 means anything, it means what it says,—that is, a challenge to the array cannot be made to a jury selected by jury commissioners. See authorities cited in White's Ann. Code Cr. Proc. under article 662. So that this article of the procedure, in connection with the articles prescribing the qualifications of the jury commissioners, must be construed in pari materia. In other words, the article of our Code places a limitation on challenges to the array, and prescribes that this shall not be allowed where the jury have been selected by jury commissioners. And the former articles further suggest that the...

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13 cases
  • Robertus v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 13, 1931
    ...15 S. W. 827; Williamson v. State, 36 Tex. Cr. R. 225, 36 S. W. 444; Mays v. State, 36 Tex. Cr. R. 437, 37 S. W. 721; Whittle v. State, 43 Tex. Cr. R. 472, 66 S. W. 771. After hearing all the testimony on appellant's motion for new trial, the trial court overruled the same. The investigatio......
  • Rogers v. State
    • United States
    • Texas Court of Criminal Appeals
    • April 6, 1927
    ...15 S. W. 827; Williamson v. State, 36 Tex. Cr. R. 225, 36 S. W. 444; Mays v. State, 36 Tex. Cr. R. 437, 37 S. W. 721; Whittle v. State, 43 Tex. Cr. R. 472, 66 S. W. 771. None of these cases involve the relationship question set up in subdivision 10 of article 616, C. C. P., but we are unwil......
  • Mills v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 7, 1932
    ...summoned have been selected by jury commissioners." See, also, Columbo v. State, 65 Tex. Cr. R. 608, 145 S. W. 910; Whittle v. State, 43 Tex. Cr. R. 468, 66 S. W. 771. As shown in bill of exception No. 19, at the time appellant's report for the month of December was admitted in evidence, an......
  • Harris v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 15, 1933
    ...that this article shall not apply when the jurors summoned have been selected by jury commissioners. In the case of Whittle v. State, 43 Tex. Cr. R. 468, 66 S. W. 771, a motion was made to quash the array of jurors on the ground that one of the commissioners was a party to three civil suits......
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