The offense is murder. The punishment assessed is confinement in the State penitentiary for a term of six years.
Appellant was indicted in Dallam County for the murder of his son, Clark Kincheloe. The case was transferred on a change of venue to Potter County, where his conviction was had.
Appellant filed a motion in the District Court of Potter County challenging its jurisdiction and prayed that the case be dismissed. The grounds for the dismissal of the case are predicated upon the following allegations: That the judge of the District Court of Dallam County, on the 18th day of November, 1942, ordered a change of venue to the 47th District Court in and for Potter County; that said order was never filed with the clerk of the District Court of Dallam County but was filed, for the first time, with the clerk of the District Court of Potter County on November 20, 1942, together with all the original papers in the case; that at the time the purported order to change the venue was made the defendant was not in custody of the sheriff but was on bond; that the court did not require the defendant to enter into recognizance or remand him to the sheriff to be kept in custody and then to be delivered to the sheriff of Potter County, as required by Articles 571 and 572, C. C. P., but told the defendant that he may go; that he was taken in charge by the sheriff of Dallam County and delivered to the sheriff of Potter County on the 5th day of February, 1943; that the defendant was not under bond or in custody at the time this case was set for trial and a special venire was ordered. The order changing the venue in this case appears in the record and contains, among other things, the following:
"It is further ordered that he (defendant) forthwith enter into recognizance in the sum of $7,500.00 conditioned for his appearance before the District Court of Potter County, Texas, at the present term of said court on the 20th day of November, 1942, and there remain from day to day and from term to term of said court until discharged, to answer said indictment herein.
"And the said defendant is now committed to the custody of the sheriff until he enters into said recognizance and in default *Page 417 of his entering into said recognizance the sheriff shall remove him to said Potter County and deliver him to the sheriff of Potter County, Texas, on the 20th day of November, 1942. * * * and the Clerk of the District Court of Dallam County, Texas, shall fill out a true transcript of all orders made and the proceedings had in the District Court of Dallam County, Texas, in this cause and together with all papers filed herein including the indictment * * * and transmit same to the Clerk of the District Court of Potter County, Texas, as required by law, together with the recognizance of the defendant and list of witnesses if any in this cause."
It appears that that the clerk complied with the order of the court. We find nothing in the record which sustains appellant's allegations in the motion. If appellant did not enter into a recognizance, was not taken into custody by the sheriff of Dallam County and delivered to the sheriff of Potter County as ordered by the court, it would have been an easy matter to have made proof thereof. We are not to be understood as intimating that error would have appeared had such proof been made. Ex parte Haley, 88 Tex.Crim. R., 228 S.W. 208.
By Bill of Exception No. 1 appellant complains of the court's action in overruling his second application for a continuance based upon the absence of his son, J. P. Kincheloe. It appears from the record that at and before the killing this witness was in the military service of the United States of America, but was present at court in Dallam County on the 15th day of November, on leave of absence, when the case was called for trial, at which time the District Attorney of Dallam County stated in open court that the State would agree that the testimony of said witness be taken in open court, reduced to writing and introduced upon the trial of the case, but appellant declined to avail himself of the proffered agreement. The alleged absent witness could not have had any knowledge of any fact which occurred at the time of or immediately preceding the killing. Moreover, the record reflects that every material fact which he desired to prove by the absent witness was proved by other members of his family. Hence the bill fails to reflect error. This being a second or subsequent application, it was within the sound discretion of the court to overrule the same, and unless it is made to appear that the court abused his discretion with reference thereto, we would not be justified in reversing the case. See Gilbreath v. State, 136 Tex. Crim. 299,124 S.W.2d 996; Humphreys v. State, 137 Tex. Crim. 142,128 S.W.2d 816; Gunter v. State, 144 Tex.Crim. R.,161 S.W.2d 100; Campbell v. State, *Page 418 138 S.W.2d 1091; Woodley v. State, 172 S.W.2d 318; Williams v. State, 168 S.W.2d 261.
By Bill of Exception No. 2 appellant complains because the trial court declined to sustain his motion to quash the special venire. In his motion he charged that the court ordered a special venire of 200 men to be drawn and summoned, from which a jury in this case was to be selected; that the sheriff's return upon said venire shows that 168 of said 200 veniremen were summoned by telephone or by mailing a card through the United States mail with the exception of 21 of this number, who were summoned in person; that upon the roll of said venire being called for the first time less than 70 veniremen qualified for service; that there were approximately 75 veniremen whose names were called who failed to appear and who were not excused or exempt from jury service. The court overruled the motion, and upon the call of the roll of said venire only 65 of those summoned reported for duty; that of the 65 who appeared only eight were selected on the trial of the case. Whereupon the defendant renewed his motion to quash the venire, but the same was again overruled; that in order to complete the jury the court, on three different occasions, by three separate orders, summoned 120 talesmen from which number the jury was completed. In his certificate to the bill, the trial court states that it was proven that 200 men had been ordered as a special venire in this cause; that all of said 200 veniremen were summoned by post card or telephone, either or both, with the exception of 21 who were summoned in person; that at least 95 per centum of the veniremen lived in Amarillo, the county seat of Potter County; that of the number of veniremen summoned only 65 appeared and out of which number only eight were selected as jurors to sit in the trial of the case; that thereafter, in order to complete the jury, the court, by three separate orders, summoned 120 talesmen from which the jury was completed.
Article 597, C. C. P., provides as follows: "The officer executing the writ shall summon the men whose names are upon the list attached to the writ to be before the court at the time named in the writ to serve as veniremen. Such summons shall be made verbally upon each juror in person."
Article 2116e, Acts of the 45th Legislature, (1937), p. 678, chapter 339, section 1, provides:
"That in counties having therein a city of twenty-five thousand (25,000) or more population, as shown by the last preceding Federal Census, jurors summoned in capital cases shall be served *Page 419 verbally by the sheriff to appear, or if so ordered by the judge drawing said jury, shall be served by the sheriff by registered mail to appear.
"In the event the Judge drawing the jury directs the sheriff to make service by registered United States mail, it shall be sufficient if the summons to report for jury service states the time and place where said juror is to report, and if same be mailed in the United States mail by registered letter to the jury at the address shown by the card placed in the jury wheel, and if said letter be received by some person authorized by the United States mails to receive said letter. The return receipt of the United States Post Office Department showing said letter was received by said juror, or by some person authorized by the United States Post Office Department to receive same for him, shall be deemed prima facie evidence that the juror actually received such notice."
It appears from the bill that the foregoing provisions of the statutes were not observed and followed in securing the presence of the special veniremen drawn from the jury wheel. Under the facts disclosed by the bill, neither the defendant nor the State could have asked for an attachment to be issued for the absent veniremen inasmuch as they had not been legally summoned. Appellant was entitled to the selection of a jury from the veniremen drawn who were legally qualified for jury service unless the venire is exhausted; and this right should not be denied him by the officers whose legal duty it was to serve each of the prospective jurors verbally or by registered letter when so ordered by the court, as provided in Article 2116e, supra. We think that the bills of exception relating to the matter under consideration present reversible error. See Armstrong et al v. State, 120 Tex.Crim. R..
By Bill of Exception No. 4 appellant complains of the court's action in overruling his objection to the following instruction in the court's main charge: "Our statutes provide that intoxication, produced by the voluntary recent use of ardent spirits, that is, intoxicating liquors, does not constitute any excuse in this State for the commission of crime, and that intoxication so produced shall not mitigate either the degree of the crime or the punishment therefor."
The objection urged against the charge is that it is prejudicial, upon the weight of the evidence, and that the issue of temporary insanity produced by the voluntary recent use of *Page 420 ardent spirits was not raised by any evidence. The record does reflect that appellant was intoxicated at the time of the killing but not to a degree that it produced temporary insanity. Consequently, an instruction on temporary insanity from the use of ardent spirits was not required, but the instruction of the court that intoxication produced by the voluntary use of ardent spirits was not any excuse for the commission of the offense and should not mitigate the degree of the offense or the punishment was not improper. The voluntary recent use of intoxicating liquor will not authorize a mitigation of the punishment. It applies only when it has produced temporary insanity.
Bill of Exception No. 5 is without merit. When the order of the court changing the venue of the case was given to the clerk, it was tantamount to the filing thereof, although he may not have placed a file mark thereon.
Bill of Exception No. 6 complaining of the action of the court in declining to sustain appellant's challenge to prospective jurors because they had not paid a poll tax is without merit. Art. 579, C. C. P., provides that the failure to pay the poll tax shall not disqualify any person from jury service. See Franks v. State, 139 Tex.Crim. R., (47).
Bill of Exception No. 7 complains of certain testimony given by Mrs. Allison to the effect that appellant told her that on one occasion when he whipped the deceased with a wet rope his mother and sister came out and took it up and he whipped the boy's mother. We fail to see the relevancy of this testimony. It did not prove or tend to prove any fact to support any issue. That it was prejudicial is obvious, and upon another trial all testimony relating to appellant's harsh treatment of his wife should, upon objection, be excluded.
In Bill of Exception No. 8 appellant complains of the cross-examination of his wife by the District Attorney relative to a certain conversation which she had with Mrs. Allison in front of Mr. Schlofman's office on the first day of September, 1942, and if she did not in that conversation state to Mrs. Allison: "Well, it is going to be hard to say anything against Clark, but we just have to get dad out of this." To which appellant objected on the ground that the alleged conversation was out of the presence and hearing of the defendant, was not res gestae and not germane or pertinent to the direct examination of the wife. Appellant requested the court to instruct the jury not to consider the same. The court overruled the objection and the *Page 421 witness answered the question in the negative. Mrs. Allison was then called and testified that such statement was made by the witness. In our opinion, this bill is without merit. The wife of appellant gave testimony favorable to the appellant. The statement did not relate to any conversation between the witness and her husband. It affected the credibility of her entire testimony and the weight to be given to it. The State had a right, if it could, to discredit the witness. Consequently, there was no error on the part of the court in overruling the objection. In 44 Tex. Jur., p. 1039, sec. 77, it is said: "Notwithstanding that no new matter may be introduced on cross-examination of a wife who has testified for her husband * * * she may be interrogated as to matters which fairly and legitimately tend to test the credibility and truthfulness of her testimony on direct examination."
Bill of Exception No. 9 complains of certain testimony given by the wife of the deceased over appellant's objection relative to her undisclosed motive in trying to get the deceased away from appellant's home, what she said to him and what he said to her out of the presence and hearing of the appellant. This testimony should not have been admitted as against the objections urged thereto. We see no need of entering upon an extended discussion of the reason why and wherefore it was not admissible. The objections state an elementary rule of evidence of long standing.
For the errors pointed out the judgment of the trial court is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON STATE'S MOTION FOR REHEARING.