Lugo v. State

The offense is murder; the punishment assessed is death.

The record shows that on the night of February 15, 1938, appellant killed Dick Chisholm in the town of Odem and then took from his person $8.00 in money, a pistol and a pocket knife. A few days after the offense was committed, appellant was *Page 228 arrested in Corpus Christi and made a written confession to the officers in which he admitted the killing. He stated that Chisholm had struck him on the head with a pistol some two weeks prior to the time of the alleged offense. That on the night of the homicide, he was in the town of Odem, watching for the deceased and intending to "shoot it out with him." That when he saw him on the street after midnight, he went up to him, pulled out his pistol and told the deceased that they were going to kill each other. That he got in the first two shots and deceased fell without firing a shot; that as the injured man lay upon the street mortally wounded, he walked up to the body and fired a third shot into his head and then robbed him. He told the officers where he had put the pistol, the pocket knife, and what he had done with the money. The officers found the property at the places mentioned by him. Appellant did not testify or offer any defense.

His first complaint is that the court erred in declining to quash the indictment and special venire panel, based on the ground of discrimination against the Mexican race of which he was a member. The court, after hearing the testimony offered by appellant in support of his motion, overruled it and by timely exception appellant has brought the matter before us for review. Obviously the only question presented is whether or not race discrimination was practiced in the selection of grand and petit jurors for said term of court. This was a matter addressed to the discretion of the court, and in the absence of a showing of an abuse of discretion we would not be authorized to disturb his findings.

Mr. Vickers, a deputy tax collector, testified that there were between three and four hundred Mexicans in San Patricio County who were qualified voters, but he failed to state how many, if any, could read, write and understand the English language. Mr. Hunt, the sheriff, testified that he had lived in the county for thirty-six years and had been sheriff for fifteen years. That during his tenure of office, he had called citizens of the Mexican race to do jury service, but could remember only two that had served as jurors. That very few of the citizens of the Mexican race in the county were able to read and write the English language.

Mr. Scull, Mr. Rosson, Mr. East and Mr. Beall testified that they had served as jury commissioners and drew the jury for that term of court; that they selected the men best qualified to perform jury service. That there was no discrimination with regard to whether they were white, black or any other color. *Page 229 That had they known of any citizen of the Mexican race qualified for service they would not have hesitated to place his name on the list of jurors for the term. Rodriquez testified that he lived in precinct number two of San Patricio County and knew of three men of Mexican descent who lived in that precinct who could read and write the English language.

The burden of proof rested on the appellant to show an intentional exclusion by the jury commissioners of members of his race from jury service. See Lewis v. State, 42 Tex. Crim. 278; Thomas v. State, 49 Tex.Crim. Rep. (640). In this case he has failed to discharge said burden. On the contrary, the jury commissioners whom he introduced as witnesses testified that they would have placed Mexicans on the jury had qualified ones appeared on the tax rolls. See Sec. 586 Branch's Ann. Penal Code and authorities there cited.

Appellant, in his motion for a new trial, complains for the first time because the court declined to sustain his challenge for cause to some of the prospective jurors because they were, or had been at some former time, peace officers, and the man he had killed was a peace officer. The fact that a prospective juror is a peace officer is not a ground for a challenge for cause. See Sec. 549, Branch's Ann. P. C., p. 282; Trinkle v. State, 59 Tex.Crim. Rep.; Mingo v. State, 133 S.W. 882.

He also contends in his motion for a new trial that the court erred in declining to sustain his challenge for cause to the prospective juror, Mathis, a night watchman, who on his voir dire stated that he had read in the newspapers an account of the alleged offense and had heard it discussed. That from what he had heard and read, he had formed an opinion as to the guilt or innocence of the accused.

It may be that the court should have sustained the challenge, but appellant peremptorily challenged the prospective juror. No complaint is made that by reason of the court's ruling he exhausted his peremptory challenges and then had to accept an objectionable juror. In the absence of such a showing, we fail to see how harm could have resulted to him. Moreover, no bill of exception was taken to the ruling of the court. See Sec. 543, Branch's Ann. P. C. and authorities there cited; Bass v. State, 59 Tex.Crim. Rep. (127 S.W. 1023); Powers v. State, 23 Tex.Crim. Rep..

Appellant also complains of the introduction in evidence of his confession made to the officers after he was duly warned, and which was reduced to writing and signed by him in the *Page 230 presence of two subscribing witnesses as prescribed by statute. There is no merit to his contention in this respect. All of the requisites of the statute were complied with. See Art. 727, C. C. P.

Moreover, appellant upon being arrested for the offense made an oral statement to the officers in which he admitted having committed the homicide and robbing the deceased. He gave to the officers a description of the property which he had taken from the body and told them where he had secreted the same. Pursuant to this information, the officers found the property at the places designated by him. Under the facts above stated, the statement which he made to the officers showing his connection with the offense became admissible and his written confession made subsequent thereto was in harmony therewith. See Art. 727, C. C. P.; Branch's Ann. P. C. Sec. 63, p. 36 and authorities there cited; Johnson v. State, 44 Tex.Crim. Rep. (71 S.W. 25).

Appellant, in his motion for a new trial, also complains of certain testimony given by Ike Elliff, S. F. Hunt and Victoria Ybarra. In said motion, he sets out the questions and answers of each of said witnesses. He has not followed the proper procedure in this respect, for he has failed to properly embody in narrative form the testimony of each witness with his ground of objection thereto in a separate bill. See Art. 760, C. C. P.; Monday v. State, 124 Tex.Crim. Rep.; Shepherd v. State, 95 S.W.2d , 438; Hunnicutt v. State, 97 S.W.2d , 957. However, since this is a case in which the extreme penalty has been inflicted, we have carefully examined the testimony objected to and reached the conclusion that it was competent, material and pertinent to the matter under investigation.

We have carefully examined all of the matters complained of by the appellant but fail to find any reversible error in the proceedings. Therefore, the judgment of the trial court is in all things affirmed.

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 APPELLANT'S MOTION FOR REHEARING.