Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years; hence this appeal.
Appellant made a motion to quash the indictment on the ground that *Page 431 in the formation of the special venire to try appellant, he was discriminated against on account of his race. We do not think that the testimony is sufficient to show that any discrimination was had against appellant in the formation of said jury. The mere fact that the commissioners appointed to select a jury did not draw any negroes on the list, is not sufficient to show that the negro race was discriminated against. In this connection appellant offered testimony to show that the sheriff discriminated against him in summoning talesmen, and he offered some testimony on this subject; but this is in the statement of facts, and it does not appear that he objected and filed a motion to quash said list of talesmen when they first brought into court. Before he could avail himself of the action of the sheriff, he should have made a motion, when the list of talesmen was first brought into court, to quash the same, and then have offered testimony on the subject.
Appellant also objected to the special venire, because it had been drawn by the jury commissioners for another term of the court, it appearing that the term of court had been changed by the Legislature after the commissioners were appointed. It does not occur to us that there is anything in this objection.
When the jury was being impaneled, J.E. Foster, who had been summoned as a special venireman, was called. On his voir dire examination, it was shown that he had not paid his poll tax for the year 1902, this case being tried on March 23, 1903. Appellant challenged this juror as not being qualified, inasmuch as he was not authorized to vote under the Constitution and laws of this State. The court overruled this challenge, and appellant challenged him peremptorily. The same course was pursued with reference to two other jurors, to wit, J.J. Barlow and Paul Floeck. After this, and when eleven jurors had been selected and sworn in said case, Y.W. McNeal was brought forward and tested as to his qualifications, and was shown to be a qualified juror, and was accepted by the State. At this time defendant had already exhausted his fifteen peremptory challenges, and he then requested the court, in view of the fact that he had been compelled to challenge peremptorily three jurors, who had stated on their voir dire that they had not paid the State and county poll tax due for the year 1902, prior to the first day of February, 1903, that defendant be allowed to challenge peremptorily said Y.W. McNeal, which request was by the court overruled, and said juror ordered sworn to try the cause, which completed the panel. Defendant excepted to the action of the court with reference to not allowing him to challenge for cause said other three jurors who showed that they had not paid their poll tax; and also excepted to the action of the court refusing to extend his challenges so that he might challenge the juror McNEAL. This brings before us for construction the recent constitutional amendment, commonly called, "the poll tax amendment to the Constitution," which was adopted at the last general election, and by its terms is made self-enacting, without the necessity of further legislation. Article 673 Code Crim. Proc., makes the fact that one is not a qualified voter in the *Page 432
State and county under the Constitution and laws of this State a cause for challenge. The amendment to the Constitution above referred to makes the payment of a poll tax before the 1st of February of each year a necessary prerequisite to the right to vote. Consequently when the three jurors before mentioned were presented to appellant, they were shown not to be qualified voters, and accordingly were not qualified jurors; and this fact constitutes a ground of challenge for cause. The action of the court deprived appellant of this right, and the juror McNeal was forced upon defendant without his consent. We hold that under the circumstances that it was not competent for the court to deprive appellant of his peremptory challenges. Keaton v. State,40 Tex. Crim. 139.
Appellant excepted to the State proving that he threatened prosecutrix, in connection with the act of carnal intercourse with her. This was a part of the res gestae, and pertinent evidence, notwithstanding she was under the age of consent.
Appellant also objected to the refusal of the court to permit him to prove that prosecutrix was employed by her father to assist in selling beer in his store, where disorderly characters, men and lewd women, gathered to drink beer at night, and to engage in lewd and disorderly conduct; and that prosecutrix associated with them and drank beer with them and waited on them in the wineroom, associating with them on terms of social equality. This evidence was offered for the purpose of attacking her credibility as a witness. This question has been before this court in a number of cases, and the authorities are not altogether reconcilable. However, we think the rule deducible from them is to the effect that, on cross-examination, a witness may be asked as to her or his vocation, environments and associations; but not for the purpose of laying a predicate for contradiction; the party so interrogating on cross-examination must be satisfied with the answer of the witness. See authorities discussed in McCray v. State, 38 Tex.Crim. Rep.. In this particular case we believe it was competent to interrogate the witness as to her occupation and associations. Of course, this matter is in the sound discretion of the court, and details will not be permitted.
Appellant has assigned other errors, but it is not necessary to discuss them. The judgment is reversed and the cause remanded.
OPINION ON REHEARING.