Wolfe v. State

• Citation: 178 S.W.2d 274
• Decision Date: 05 January 1944
• Docket Number: No. 22620.,22620.
• Parties: WOLFE v. STATE.
• Court: Texas Court of Criminal Appeals

178 S.W.2d 274

WOLFE v. STATE.

No. 22620.

Court of Criminal Appeals of Texas.

January 5, 1944.

Rehearing Granted March 1, 1944.

Appeal from District Court, Hidalgo County; Bryce Ferguson, Judge.

J. C. Wolfe was convicted of driving a motor vehicle on public road while intoxicated, and he appeals.

Reversed and remanded.

Kelley & Looney, R. J. Enochs, L. Hamilton Lowe, all of Edinburg, and E. A. McDaniel, of McAllen, for appellant.

Sturgeon E. Bell, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Appellant was convicted of driving while intoxicated upon a public road, it being also alleged that he had theretofore been convicted of a misdemeanor offense previously committed of driving while intoxicated upon a public road. Punishment was assessed at one year in the penitentiary.

Prosecution was under Art. 801 P.C. and Art. 802b, P. C. as amended by the 47th Legislature, Ch. 507, page 819, Vernon's Ann.P.C. art. 802b.

The evidence amply supports the conviction. We see no necessity of reciting it. The previous conviction of "drunken driving" was upon a plea of guilty by appellant.

Appellant appears to rely largely upon bill of exception number four as presenting error calling for reversal of the judgment. The bill recites that one F. P. Archer was on the jury panel, and that appellant challenged him for cause because he was a member of the grand jury which returned the indictment against appellant. After Archer had stated that he had forgotten any evidence heard in the grand jury room, and had no opinion as to appellant's guilt, the court overruled the challenge for cause. The bill then proceeds as follows: "After the challenge for cause had been overruled and the defendant excepted, as shown, the defendant exhausted all his peremptory challenges, using one on Juror F. P. Archer, who was so challenged for cause. Defendant now states that there were several jurors he considered objectionable and upon whom he would have used peremptory challenges had he been permitted to do so, one of whom was Ralph Hughes, who served on the jury and who would have been stricken by the defendant (if defendant) had been allowed an additional challenge by the sustaining of his challenge for cause to the juror Archer, but there being no grounds for disqualification of the juror Hughes which the defendant could establish before the Court, he was forced to take him in preference to some others whom he considered worse."

In overruling the challenge for cause against the juror Archer the trial court seems to have confused the "disqualification" of a juror with the "grounds of challenge for cause". Sec. 7 of Art. 616, C.C.P., specifically provides one ground for such challenge for cause as "That he served on the grand jury which found the indictment." Mitchell v. State, 116 Tex.Cr.R. 65, 27 S.W.2d 800. The court should have sustained the challenge for cause against the juror Archer.

Looking to the remainder of the bill, it is noted that as to the juror Hughes it is only recited that he was an "objectionable" juror, without setting out any reasons why he was so characterized. No facts are stated which would advise this court that Hughes might have been in some sense an unfair, prejudiced, or biased juror, though not to the extent as would furnish a predicate for a challenge for cause.

We copy the first and second paragraphs on page 280 of Branch's Ann.Tex.P.C.:

"Even if it is shown that the peremptory challenges were exhausted, the bill of exceptions is not sufficient if it is merely recited therein that an objectionable juror was forced on defendant and there is a failure to show what facts made him objectionable."

"It is not enough that the bill of exceptions recites that an objectionable juror sat on the case, but it must show wherein such juror was objectionable or what facts tended to prevent him from being a fair and impartial juror."

Perhaps the leading case upon the point involved in Hudson v. State, 28 Tex.App. 323, 338, 13 S.W. 388. Other cases cited by the State upon the bill being insufficient are: Prewitt v. State, Tex.Cr.App., 167 S.W.2d 194; Carter v. State, 45 Tex. Cr.R. 430, 76 S.W. 437; Rippey v. State, 29 Tex.App. 37, 14 S.W. 448; Galan v. State, 76 Tex.Cr.R. 619, 177 S.W. 124; Jones v. State, 124 Tex.Cr.R. 607, 64 S.W.2d 789.

An examination of Shepard's S.W.Rep. Citations reveals that Hudson's case has been cited with approval and followed some twenty-one times on the question of formation of juries, not always upon the exact point now before us, but whenever such precise point was involved the holding in Hudson's case has never been departed from. In Carter v. State, 45 Tex. Cr.R. 430, 76 S.W. 437, the question arose almost precisely as we find it in the present case. In the opinion on rehearing, the subject is again discussed, Hudson's case, supra, cited and followed. In Johnson v. State, 108 Tex.Cr.R. 499, 1 S.W.2d 896, the court was again dealing with the exact question now before us, and a similar bill of exception held not to present error. This holding was followed in Grille v. State, Tex.Cr.App., 20 S.W.2d 424. The precise question was also before the court in Saffel v. State, 121 Tex.Cr.R. 444, 449, 51 S.W.2d 393, and a bill of exception such as here found held to show no error. To the same effect is Murphy v. State, 139 Tex.Cr.R. 552, 141 S.W.2d 634. The last time the question was before this court was in Prewitt v. State, Tex.Cr.App., 167 S.W.2d 194. The question was there presented just as in the bill now being considered, and the bill held insufficient to present error.

Some general expressions in the opinion by Judge Morrow in Kerley v. State, 89 Tex.Cr.R. 199, 201, 230 S.W. 163, 164, may be thought to sustain the bill in the present case. In the opinion on rehearing in Saffel's case, 121 Tex.Cr.R. 444, 51 S. W.2d 393, it is pointed out that the question discussed in Kerley's case was entirely different from the one here present, and that Judge Morrow in the Johnson case, 108 Tex.Cr.R. 499, 1 S.W.2d 896, followed precisely the holding in Hudson's case on the point now before us.

To sustain appellant's contention that his bill of exception number four exhibits reversible error would call for overruling either directly or in effect the many cases holding to the contrary.

By bill of exception number eleven, appellant complains that the State was permitted to cross-examine his wife on matters not inquired about on her direct examination and which were not germane thereto. Tom Mayfield was one of the officers who arrested appellant on the occasion which formed the basis of the present prosecution. Appellant had testified that Mayfield had said he was going to send appellant to the penitentiary. On rebuttal, Mayfield testified that he had never made such a statement to anybody. Appellant then called his wife, who testified on direct examination that some three weeks before the present trial, Mr. Mayfield was at her house and that she asked him: "If he was not doing wrong in what he was doing and he said `no, I am doing everything in my power to send him (meaning defendant) to the penitentiary'." It is apparent that the development of the matter only to the point at which appellant sought to leave it was vague and uncertain. On cross-examination the State elicited from the wife the circumstances under which the officer was at her house, resulting in appellant's arrest. The inquiry by the State appears germane to the wife's evidence on direct examination. As qualified by the court, the bill of exception presents no error.

The court authorized the jury to convict appellant if he drove upon the highway "while intoxicated or while under the influence of intoxicating liquor". The complaint is that being submitted in the disjunctive, it was confusing and led the jury to believe there was a difference between being "intoxicated" and being "under the influence of intoxicating liquor." Bills of exception numbers 12, 13, 14, and 15 present objections to the court's charge as so submitted and complain of the refusal of a special instruction requested by appellant, which would have told the jury that "under the law the terms `intoxicated' and `under the influence of intoxicating liquor' mean one and the same thing." We think the court had already in his main charge instructed the jury to the same effect in the following language: "You are further charged that a person is deemed to be `intoxicated' or `under the influence of intoxicating liquor', within the meaning of the law, when he does not have the normal use of his physical and mental faculties by reason of the use of intoxicating liquor."

Thus explaining the terms used, we discover no reversible error in the court's instruction, or in refusing the requested charge.

Bill of exception number sixteen brings forward complaint of the argument of the prosecuting attorney as follows:

"It is an unfortunate situation for Mr. Wolfe and for Mrs. Wolfe and for those children.

"They have been here in the courtroom before you and they have been brought in here by this man who has let them down and is being tried for his liberty; he has let his own family down, and has brought them into the courtroom for the effect it may have upon the jury."

The argument was objected to upon the ground that there was no evidence that the children were brought into the courtroom for any purpose except to take care of them while the father was on trial. The court instructed the jury not to consider the argument, notwithstanding which appellant excepted. Counsel for the State then said: "I am not trying to force my opinion upon you (jury). I am stating my opinion." There seems to have been no objection to the latter remark. In view of the court's instruction, the bill appears not to present reversible error.

We find in the record eighteen bills of exception. All those briefed by appellant have been discussed. All the others have been examined and are...