Wiggins v. State.
| Decision Date | 25 January 1905 |
| Parties | WIGGINS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Van Zandt County; R. W. Simpson, Judge.
J. D. Wiggins was convicted of rape, and he appeals. Reversed.
Lively & Stanford, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of 15 years; hence this appeal.
Appellant moved to quash the indictment on the ground that there were two counts in the same, one charging rape, and the other incest; and that these were incongruous and incompatible offenses, charged in the same indictment. We do not agree with this contention. Both counts are predicated upon the same transaction, and each charges an offense arising therefrom, though they are distinct offenses. This affords no reason why the indictment should be quashed.
Appellant contended the trial should have been postponed to give him one entire day after service of the special venire, which was served on Saturday, November 12th, about 3 o'clock, and defendant's case was called for trial on Monday morning, and he was forced to trial on said last-mentioned date; and that Sunday is no day in law, and therefore he had been deprived of one full legal day. This was a sufficient compliance with the statute. Adams v. State, 35 Tex. Cr. R. 286, 33 S. W. 354.
Appellant also contends that the copy of the venire served on him contained only names of 9 persons summoned by the sheriff, whereas the original writ and return showed that 40 of the special venire of 60 were summoned by the sheriff. The bill refers to the proceedings on the motion to quash the venire. In those proceedings we find what purports to be a copy of the jurors served. From this we take it that appellant is complaining there is nothing opposite the names of a number of persons showing what service was had on them, and that there are no dots opposite such names, showing that the service was similar to the above. If this is the objection urged, we think the whole copy should be taken together, and the concluding portion thereof shows the particular jurors not served. We think this makes the matter of service sufficiently definite, leaving the remainder of the names served. The court did not err in overruling appellant's objections. Nor did the court err in authorizing the deputy sheriff to make service on the special veniremen. The court appears to have heard proof on the question, and determined that said deputy was not prejudiced against appellant. At any rate, he was not summoning talesmen, but merely making service on the veniremen as drawn. We do not believe there was any error in these proceedings.
As to the statement made by appellant after he was under arrest, we think the explanation of the court shows he was warned.
By a number of bills of exception appellant questions the action of the court permitting the state to prove...
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