Wyers v. State

• Decision Date: 13 November 1886
• Citation: 2 S.W. 722
• Parties: WYERS <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 722

2 S.W. 722

WYERS

v. STATE.¹

Court of Appeals of Texas.

November 13, 1886.

Appeal from district court, Falls county.

This conviction was for the theft of S. B. Bryan's steer, on the twenty-fourth day of June, 1881. A term of two years in the penitentiary was the penalty assessed. The state proved, in substance, the loss by Bryan of his certain steer, white in color, with specks or spots of red on the neck and shoulders, branded "B Y;" that animal disappeared late in March, or early in April, 1881. It was marked by a crop off the left ear.

One Joe Smith testified, for the state, that in the spring of 1881 he saw an animal on the range answering in every particular to the description given by Bryan of the animal named in the indictment. He afterwards saw the same animal in a herd in the possession of the defendant, who was driving it to market. The "B Y" brand had recently been changed to "WEBB," the defendant's brand.

Green Barran testified, for the state, that he saw Bryan's animal on the range in March, 1881. In April of the same year he saw it in the defendant's herd. Its brand had then been changed into defendant's brand.

Rinkelman testified, for the state, that in June, 1881, he bought a small herd of cattle from the defendant. Among the animals in that herd was a small, white steer answering to the description given by Bryan, except that the brand was "WEBB."

It was testified for the defense that in December, 1880, the defendant purchased the "WEBB" brand of cattle from Messrs. Carter & Graves, and that the cattle in that brand included a small, white steer, with red spots or specks on the neck and shoulders. Two witnesses testified that the small, white steer branded "WEBB," sold by the defendant to Rinkelman, was the defendant's steer.

Oltorf & Harlan, for appellant.

The court erred in overruling defendant's challenge for cause of the jurors summoned to complete the panel for the trial of this case, based upon the ground that the officer who summoned such jurors had not had the oath required by the jury law administered to him at any time prior to the summoning of such jurors. The oath required by the jury law to be administered to the officer is a prerequisite to the summoning of the jury; and, if it appears from the record that such oath was not administered to the officer who summoned the jury, the case should be reversed on appeal. Rev. St. art. 3056; Hicks v. State, 5 Tex. App. 488; Samschen v. State, 8 Tex. App. 45. The evidence is insufficient to support the conviction.

WILLSON, J.

It is made to appear by a bill of exceptions reserved by defendant that, in the formation of the jury to try this case, the regular venire of jurymen having been exhausted, the court ordered Barlow, a deputy-sheriff, to summon a sufficient number of persons to complete the jury, which order said Barlow executed. When the persons so summoned were offered as jurors, the defendant challenged them, upon the ground the said officer who summoned them had never had the oath required by law in such cases administered to him. Defendant's challenge was overruled, said persons were selected, sworn, and served as jurors in the trial of said cause; the defendant having exhausted his peremptory challenges.

Article 3056 of the Revised Statutes requires that, whenever it may be necessary to summon jurors who have not been selected by jury commissioners, the court shall administer to the sheriff, and each of his deputies, a certain oath, prescribing said oath. This provision of the statute is applicable to and of equal force in criminal as in civil cases.

In Hicks v. State, 5 Tex. App. 488, the precise question was before this court, and it was held that the conviction must be set aside because the trial court had disregarded this plain provision of the statute. That decision was rendered before the adoption of the Revised Statutes, but was based upon substantially the same statutory provision, to-wit, section 12 of the act of August 1, 1876, (Gen. Laws 15th Leg. p. 80.) If the decision was good law when rendered, it is good law now, because there has been no change made in the statute which affects the question decided. We still hold to the correctness of that decision. It unquestionably follows the statute, and we could not hold otherwise without disregarding the...