Mills v. State

*405ON MOTION FOE EEHEAEING.

HAWKINS, Judge.

The statement of facts is comparatively short, but the transcript consists of 496 pages, containing fifty-one bills of exception, with correspondingly voluminous briefs. The motion for rehearing again stresses many of the points discussed in our original opinion, with the insistence that we arrived at the wrong conclusion. We think a further discussion of questions decided originally is not called for, save the one to which we later advert. We have again reviewed them, and remain of the opinion expressed originally. Our attention is also called to several bills of exception which were not discussed in the original opinion. They were not overlooked then. They have been again examined, and it is thought none of them presents error upon which a reversal could be properly predicated. We have used our best effort not to overlook any matter presented in such an extensive record.

Appellant insists that we reached a wrong decision regarding his complaint at the trial court’s action in not sustaining the criticism of the manner in which the jury panel for the week was selected; this same point, in slightly different form, being presented in bills of exception three to nine, inclusive.

Article 2110 and 2111, R. C. S. (1925), provides substantially that the jury commissioners shall select from the citizens of the county the number of jurors directed by the court, they to be of good moral character, of sound judgment and well informed; that the commissioners shall write the names of the persons so selected on separate pieces of paper, as near the same size and appearance as may be, and fold the same so that the names cannot be seen, and deposit the names in a box, which shall be well shaken and the names mixed, after which the commissioners shall draw therefrom the names which shall be recorded as drawn to make up the jury panels of as many jurors for each week as the court has designated. One ground of challenge to the array of the jury for the wek was that in selecting it the provisions of the statute indicated by italics had not been complied with. The question might be dismissed with the statement that a challenge to the array is not permitted upon the ground urged. See articles 608 and 641, C. C. P.; Whittle v. State, 43 Texas Crim. Rep., 468, 66 S. W., 771; Walker v. State, 98 Texas Crim. Rep., 663, 267 S. W., 988; Bryant v. State, 97 Texas Crim. Rep., 11, 260 S. W., 598; Columbo v. State, 65 Texas Crim. Rep., 608, 145 S. W., 910; Powell v. State, 99 Texas Crim. Rep., 276, 269 S. W., 443. We regard the provision of the statute now under consideration as *406directory rather than mandatory. See Compere v. State, 107 Texas Crim. Rep., 95, 295 S. W., 614; Coker v. State, 7 Texas App., 83; Buchanan v. State, 107 Texas Crim. Rep., 559, 298 S. W., 569. Some three or four jurors drawn by the jury commissioners sat on the jury which tried appellant. Some of the bills of exception relate to each of said jurors, it evidently being an effort on the part of appellant to present challenges for cause to them individually. No ground for such challenge is urged save the same matters contained in the motion to suppress the entire panel for the week. Whatever form in which the challenge came, it was necessarily an attack on the jury for the week as a whole. But whether it be regarded as a challenge to the array or to the jurors individually, we think the action of the court in overruling it presents no error.

We do not intend by what has been said above to intimate that the court would have no power to protect an accused where the jury commissioners may have acted corruptly in a particular case in selecting a list of jurors to secure a conviction of accused. That the court does have such power is clearly shown in Cavitt v. State, 15 Texas App., 190, and Whittle v. State, 43 Texas Crim. Rep., 468, 66 S. W., 771. The evidence heard by the court in the present case fails to show any corrupt or improper motive or acts on the part of the jury commissioners. It does show that the commissioners knew appellant’s case was to be tried at the term of court for which the jurors were selected, and that one of the commissioners said the case would perhaps be complicated. If that knowledge operated on the mind of the commissioners at all, it seems clear it was only to the end that they used unusual care to select jurors such as the statute enjoins, those of good moral character, of sound judgment, and loell informed. Articles 2110 and 2111, R. C. S. (1925). The evidence fails to show that any man was selected as a juror who was known or thought to be biased or prejudiced against accused.

The case was set for trial for Tuesday, January 12th. Attorneys for appellant desired to present a challenge to the array of the jury for the week. It is apparent from the record that they thought it would be necessary, or at least proper, to present the motion before the jury was sworn in for the week. They appeared in court on Monday morning and advised the judge that they desired to present the motion and introduce evidence thereon, which the judge permitted them to do. The whole proceeding was at the instance of attorneys representing appellant. The state called no witnesses. After hearing the evidence, the motion was overruled. Appellant was not present, *407although he had sworn to the motion before a notary public in McLennan county on the 9th day of January. No question of appellant’s absence was raised at the time the court ruled on the motion on Monday. That point was not presented until the motion for new trial was filed. It was urged on original submission, and is again insisted upon in the motion for rehearing, that this judgment must be reversed because in appellant’s absence the court heard evidence on the challenge to the array. No case has been called to our attention where the question arose as it did here. We cannot forbear to say the situation is unique in that appellant now finds himself in the attitude of saying that the court had no right in appellant’s absence' to hear the evidence which his own counsel tendered at a time sought by them, but does insist that this identical evidence should be considered in support of the challenge to the array. It has been many times held that the selection of the jury is an important part of the trial, and that appellant should be present, but the cases so holding have reference to securing the jury which is to actually try the case, and not to passing on matters pertaining to the venire or panel of jurors for the week from which the trial jury is obtained. In our original opinion it was intimated that the hearing on January 11th was a matter preliminary to the trial. We are still strongly inclined to that view. It has been held that many things may be done preliminary to a trial in the absence of accused, such as entering an order for change of venue, transferring a case from one court to another in the same county, entering an order for or drawing a special venire, setting a case down for trial, or continuing a term of court which is about to expire. See Rothschild v. State, 7 Texas App., 519; Parr v. State, 1 S. W. (2d) 892; Phipps v. State, 100 Texas Crim. Rep., 607, 272 S. W., 209; Ehrlich v. State, 103 Texas Crim. Rep., 454, 281 S. W., 548; Littleton v. State, 91 Texas Crim. Rep., 205, 239 S. W., 202; Cordova v. State, 6 Texas App., 207; Oliver v. State, 70 Texas Crim. Rep., 140, 159 S. W., 235. It is not necessary, however, to rest the disposition of the matter on the foregoing suggestion.

On Tuesday, January 12th, when the case was called' for trial, and when appellant was present, the motion to challenge the array of jurors was renewed, and attorneys for appellant asked the court to consider in support of the motion the evidence which had been offered by them on Monday, which the court said he would do, and then in the presence and hearing of appellant again overruled the motion. Appellant makes the point that the request of his attorneys then made for the court to consider the testimony which had been offered in appellant’s *408absence, and the court’s statement that he would do so, does not suffice, but that the evidence should in fact have been reintroduced. He cites cases supporting his position. Most if not all of them are cases where some evidence was introduced by the state before the jury in the absence of accused. We regard Powers v. State, 23 Texas App., 45, 5 S. W., 153, and the reasoning of the court therein, as having closer application to the present facts. In that case Adams, a prospective juror, was examined in the absence of accused, and was peremptorily challenged by the state, and the court discharged him. It was then discovered that accused had been absent. The court made a futile effort to get Adams back in court so that he might be challenged in accused’s presence, but, failing in this, the court ordered the selection of the jury to proceed. Powers insisted that the incident which occurred in his absence was fatal to the conviction. In writing on the point, Judge White said: “A selection of the jury is beyond doubt one of the most important features of a trial for a capital felony, and we can well imagine how important it is ordinarily for a defendant to be present during such proceedings. But in any case, when a rule is invoked for non-observance, there should at least appear some slight reason why it should have been observed. It is a maxim that, as a general thing, where the reason of a rule fails, the rule ceases to be obligatory or operative. Now, the talesman Adams had been peremptorily challenged by the state. What possible injury could inure to defendant because the talesman could not be found and brought back, so that the state might again challenge him in defendant’s presence? We confess we cannot imagine. Under the circumstances disclosed, if error was committed, it was manifestly harmless error, for which no just ground of complaint can lie.” In Cartwright v. State, 97 Texas Crim. Rep., 230, 259 S: W., 1085, we had occasion to quote with approval from the opinion in Powers’ case, and, in making application of it to the facts in Cartwright’s case, said: “Where the record shows the absence of accused during any important step of the trial, or even raises the question of possible injury from something occurring in his absence during the trial, this court would not feel called upon to speculate upon the matter, but the record in the instant case presents no such state of affairs. It affirmatively shows that no injury could or did result to appellant, and the reasoning of Judge White in the Powers case, supra, applies with equal force to the question now before us.”

We are of opinion the disposition of the questions raised *409may be rested upon the principle recognized in the cases last referred to.

Believing the case has been properly disposed of, the motion for rehearing is overruled.

Overruled.