Brill v. State

Winkler, J.

We have carefully examined the record,

. aided by the lights afforded by the written arguments both for and against the accused, without discovering any error • committed on the trial in the court below which would warrant us in reversing the judgment of conviction rendered therein.

Several propositions have been discussed, which, as .abstract questions, are not without interest, but which are ’wholly inapplicable to the case before us as made by the record. For instance, it is complained in the motion for new trial that the list of jurors from which the jury was ■selected for the trial of the accused contained the names of but fourteen persons ; but there is not in the record any ■challenge to the array, or any other objection to the jury list; nor is there any showing, by bill of exceptions or ■otherwise, by which it is made to appear that the attention •of the court was called to the fact, or any ruling had, or, in fact, to show that such state of things really existed as that •set out in the motion for new trial, until after the trial had been had, and even then only in the unsupported allegation in the motion for new trial. The objection, if it in fact was "true, came too late—after the jury had been formed without •objection, and the verdict had been rendered.

Again, it is complained in argument that the court should have instructed the jury as to the law applicable in case of a voluntary return of stolen property before prosecution for "the theft. But no such charge was asked on the trial, nor was there any exception to the charge as given taken at the proper time, by a proper bill of exception, or otherwise, so far as the record discloses. If, however, such a charge had "been asked and refused, and a bill of exceptions had been taken to the ruling of the court, the judgment would not be reversed on that account, for the reason that such a charge would have been inapplicable to the case as made by the •evidence.

There is no evidence of a voluntary return of the property. On the contrary, the evidence shows that the cow ■alleged to have stolen had been driven thirty or thirty-five miles from its accustomed range, and the home of the owner, and into an adjoining county, when the accused and others were pursued by the owner, when the accused was required to drive the animal back, with others belonging to the same person and found in the same herd. He said he would be d-d if he did; but, after a consultation, the party having the cattle in charge, of which the accused was one, did promise to take the cattle back at their own expense, but, instead of complying with this promise, drove them about ten miles towards home, and then turned them loose. And this, it is insisted, was a- voluntary return of the property. We think otherwise.

Again, we are referred to numerous authorities in support of the proposition that, if the accused took the property under a mistaken, though honest, claim of right to it, he could not be punished criminally for the taking. All very good law when applicable. But we do not find that the accused set up any claim to be the owner of this cow, or that he was the owner of any cow, but simply that he was authorized to drive a hundred head with the drove which it seems was at that time being gathered. The evidence does not show where these hundred head were to come from. And there is the further fact, as stated in the statement of facts by the witness for the accused, who swore that the witness, the accused, and two other persons, according to the witness’ understanding, were employed by William Martin to gather cattle in various brands, one of which was a brand thus, A S, sharp-topped A with a bar through it, and with ear-marks different from that on the animal described in the indictment, which brand belonged to a man in Guadalupe county. The brand on the animal alleged to have-been stolen is thus described, viz., a round-topped A, without any bar through the A. Eather a slim pretext for an honest, though mistaken, claim of right.

There is but one proposition deserving serious consideration presented in this case, namely, that set out in the motion for new trial and assigned as error—in effect, that one of the jurors who sat on the trial had, before this trial, sat as. a juror when a mistrial was had in this cause, and that on this account the accused was not tried by an impartial jury.

This objection, stripped of its verbiage, amounts to simply this : that one of the jurors who tried the case had, before that time, sat on a jury impaneled for the trial of this cause, in which a mistrial was had. The question is : Did the accused have a fair and impartial trial? If so, the verdict should stand; if otherwise, it should be set aside. The affidavit of the juror shows clearly that the mistrial had made no impression on the mind of the juror ; that he did not, in fact, remember anything concerning it, or that he had sat upon the jury, until he was reminded of it by another, after the last trial had closed and the verdict had been rendered. This ground for a new trial would have been strengthened had it been supported by the affidavit of the accused that he was ignorant of the fact that the juror had sat on a former trial, or that he had been prejudiced by the fact. On these subjects the accused is silent. So that we can look only to the affidavit of the juror in order to ascertain whether he was impartial or not; and from this it appears that, so far as this juror was concerned, the verdict rested solely upon the evidence offered on the last trial.

If the fact had been known, at the time of impaneling the jury, that one of the jurors had sat on a mistrial of the case at a previous term, the court would in all probability have stood the juror aside ; or, if objected to, and the objection overruled, the accused could have challenged him peremptorily, or have saved the point by bill of exceptions, and thus have availed himself of it on appeal. But when no notice is taken of the subject until after the trial was had, and it comes up for the first time by motion for new trial, the question then seems to be: Was the accused prejudiced by this proceeding?

In 2 Gra. & Wat. on New Trials, 465, we find this language : “It should be stated that, notwithstanding the disqualification of jurors, if the verdict is without doubt correct, so that no injustice has been done, a new trial will not be granted.” The author continues: “ In Jones’s case talesmen were called as jurors in a capital case, at the instance of the prisoner, and were selected by him and sworn in. He moved for a new trial on the ground of objections to these jurors discovered after the trial. The court held that it ought not to.set aside a verdict of guilty, just in itself, though the objections might, perhaps, have been good ground of challenge if known and disclosed before the jurors were selected and sworn.” See, also, Johnson v. The State, 27 Texas, 764.

In O'Mealy v. The State, decided by this court at the Austin term, 1876, the court refused to set aside a verdict where one of the-jurors was disqualified, not being a citizen of the state, because it was not made to appear that any prejudice or injury was done the accused, or that the omission to challenge did not result from a want of diligence. And see Roseborough v. The State, 43 Texas, 574.

We add further, though not necessary to a discussion of this case, that it is not improbable, it will be found on full examination, that Article 576 of the Code of Criminal Procedure (Pasc. Dig., Art. 3041), the 4th subdivision of which makes the fact that a juror has served on the petit jury at a former trial of the same case cause of challenge, has been repealed by the 26th section of the jury act of the fifteenth legislature, p. 83.

We see no error in the judgment which would authorize a reversal. It is, therefore, affirmed.

Affirmed.