Williams v. State

• Decision Date: 17 June 1903
• Citation: 75 S.W. 859
• Parties: WILLIAMS v. STATE.
• Court: Texas Court of Criminal Appeals

75 S.W. 859

WILLIAMS v. STATE.

Court of Criminal Appeals of Texas.

June 17, 1903.

Appeal from District Court, Harris County; J. K. P. Gillaspie, Judge.

D. E. Williams was convicted of murder in the second degree, and appeals. Affirmed.

Coleman & Abbott, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.

Appellant's son was working for deceased, Dr. De Lipcsey, as office boy, and, on account of some indignity offered by deceased to said boy, appellant and two other sons went to the office of deceased, and, meeting deceased, asked him why he pulled his boy's ears and nose. Some words followed between appellant and deceased. Thereupon appellant's two sons began to beat deceased over the head with billiard cues, deceased retreating into an office in the building, appellant and his two sons following. Appellant, having a pistol, shot deceased, from which wound he died. The state's testimony shows that appellant had threatened violence to the person of deceased if he did not apologize for the manner in which he had treated his boy.

Appellant filed a motion to quash the venire of 200 jurors, and also what he terms "a challenge to the array of petit jurors," on the ground that said venire did not constitute a lawful jury, and as ground of said challenge and motion states: (1) The statutes of this state provide that there shall be holden for the county of Harris, among other terms of this court, what is known as the "March, 1903, term," and the "April, 1903, term." (2) That no order was made during the March term, 1903, of this court, appointing jury commissioners. (3) That, notwithstanding no order of this court was made during the March term, 1903, appointing jury commissioners, yet D. Rice, Sam McNeal, and J. E. Archer undertook and pretended to act as jury commissioners, and under such pretenses, and as such, did select and draw the petit jurors now held and retained by this court for the present April term, a part of whom were summoned for each of the four weeks of said term, and from it the 200 veniremen were selected and summoned, from which venire a jury was to be selected to try defendant; and that the state and defendant were required to select jurors on the trial of this case from said venire so selected. (4) That the persons so selected were not selected from the different portions of Harris county, but as a matter of fact said entire list of jurors and special venire were all selected from and are citizens of the city of Houston, and were such at the time of such selection, except one juror, who is a resident of the town of Houston Heights, a suburb of Houston; and the residence of said jurors is within five miles of the city of Houston. (5) That no persons were notified by the sheriff, constable, or any other person authorized in the premises, or by this court, to meet or act as jury commissioners; and that there is no record of this court showing that said pretended jury commissioners ever appeared before the court, received any instructions as to their duties, or that the judge designated to said person or persons pretending to act as such jury commissioners for what weeks they should select petit jurors, etc. That, when such persons so acting had selected a jury as above stated, they gave the names of said jurors to the clerk of this court, who then made the following entry on the record of this court: "This day D. Rice, Sam McNeal, and J. E. Archer were appointed on Monday, March 9, 1903, by the court jury commissioners, and that, having been duly sworn according to law to select grand and petit jurors for the April term, 1903, of this court, and they having performed all duties required of them, and having made their report in open court, were discharged." This entry is dated March 12, 1903. The bill of exceptions further shows that this constitutes every entry of record on the books of the court, or among its files, relative to the jury commissioners. Then the bill contains a long list of the special venire, showing that they all lived in the city of Houston, with the exception stated. Appended to this bill is the following qualification by the judge: "That the commissioners were appointed as required by law, and were assembled, sworn, and instructed as required by law, and held their session by direction of the court as required by law, and duly made their report, and the lists were handed to the clerk after he was sworn to receive them as required by law. The court, upon being questioned by defendant's counsel, further stated: `No, sir. There was no written process issued for said jury commissioners. They were summoned orally. Yes, they were summoned orally by the court.' All of the commissioners lived in the city of Houston, but in different portions of the city; and that two-thirds of the population of Harris county reside in the city of Houston. * * * The jury was accepted by defendant without exhausting his challenges allowed him by law." Article 372, Code Cr. Proc. 1895, among other things, provides that the jury commissioners shall be intelligent citizens, freeholders, and qualified jurors in the county. It further provides that they shall be residents of different portions of the county. The mere fact that the jury commissioners all reside within the city of Houston, which contains two-thirds of the qualified voters of the county, would not render them disqualified to act as jury commissioners, having other qualifications. The statute does not say how far the commissioners shall live from each other, but merely that they shall reside in different...