Tuttle v. State

White, J.

The appeal in this case is from a judgment of conviction of murder of the first degree, with the'death penalty.

The question raised in the defendant’s first bill of exceptions was passed upon by this court in Garcia v. The State, 5 Texas Ct. App. 337, and it was held that the word “preceding ” in the twenty-sixth section of the jury-law of 1876, which makes it a cause for challenge that a petit juror has “ served for one week in the District Court within six months preceding, or in the County Court within three months preceding,” has reference to a prior term of court, and that a previous week’s jury-service during the pending term is not cause for challenge. Independently of this disposition of the question, the statement made by the court, “that the juror was afterwards, before the jury was complete, excused on account of sickness, and did not sit upon the case,” would have been a sufficient answer to the exception.

The ground of the second bill of exceptions was the refusal of the court to sustain the challenge to the talesman S. C. Moore. This juror was challenged by defendant because of gross prejudice towards defendant by the sheriff, the officer who summoned him. Reasons for overruling the-challenge were made part of the bill of exceptions before it-was signed by the court, and are as follows : “ 1. Because there was no evidence showing that the sheriff acted with partiality or prejudice in summoning the juror. 2. The defendant had seven peremptory challenges when the juror was empanelled. 3. The answers of the juror showed that, he was qualified to sit in the case.”

Our statute provides that “ the defendant may challenge-the array for the following cause only: that the officer summoning the jury has acted corruptly, and has wilfully summoned persons upon the jury known to be prejudiced against the defendant, and with a view to cause him to be convicted.” Pasc. Dig., art. 3034. The objection, urged to the juror in this case, it will be noted, does not come up to the rule, if this statute is applicable in challenge to a particular juror. There is no> allegation that the juror was prejudiced against defendant, nor that the sheriff' had summoned him with a view of having the defendant convicted. “ Nor can such facts be considered on appeal as-cause of special challenge to the individual jurors, unless it appears by bill of exceptions that the- defendant had exhausted his peremptory challenges. ” Bowman v. The State, 41 Texas, 417. If the sheriff had acted corruptly, and the juror was prejudiced against the defendant, defendant, had seven peremptory challenges which he- never availed himself of, and either one of which could and should have-been used to get rid of the juror, before he can be heard to> complain. Had he brought himself within the- statutory rule by his objection, and then have shown that his peremptory challenges were exhausted, and that, consequently, he was powerless to relieve himself, the case would have been different. As it is, the court did not err in the ruling.

No bill of exceptions was saved to the action of the court in overruling defendant’s application for a continuance, and this court will not notice any complaints with regard to it. Allen v. The State, 4 Texas Ct. App. 581, and authorities cited.

With regard to the motion for a new trial; we cannot see that the court erred in overruling it, so far as it was based upon the ground of newly discovered evidence. In the first place, the affidavit, or motion, is sworn to by the counsel of defendant, and does not negative the fact that the defendant himself knew of the existence of the supposed newly discovered evidence, or show that he could not have discovered it before the trial by the use of ordinary diligence. Gross v. The State, 4 Texas Ct. App. 249; Harmon v. The State, 3 Texas Ct. App. 51.

Another ground of the motion for a new trial was, that spirituous liquors had been furnished to, and were drunk by, the jury. Counter-affidavits were made by the jurors and the officer having them in charge, showing that the whiskey was drunk by them before any of the testimony of the case had been introduced before them, and that none of them were intoxicated by the whiskey which they drank, they not having been furnished with exceeding one pint. To make this objection sufficient to invalidate a verdict, under our statute, it must be shown that during the trial, or after retiring, the juror or jurors may have become so intoxicated as to render it probable that his or their verdict was influenced thereby. Pasc. Dig., art. 3137, subdiv. 7; March v. The State, 44 Texas, 65; Jack v. The State, 26 Texas, 1; Webb v. The State, 5 Texas Ct. App. 596. The better practice is that the bailiff, or officer having charge of the jury, should, in all criminal cases, be instructed not to permit them, after they are empanelled, to have intoxicating liquors whilst under his custody; and a bailiff or officer permitting it should be severely punished by the court.

Again: one of the additional grounds for a new trial was, that the defendant was not present in court when the jury was sworn. To have authorized this court to notice this ground of complaint, the attention of the court should have been called to the fact at the time; and then, if the court had proceeded in swearing the jury, a bill of exceptions should have been saved, stating the facts. As it is, such errors cannot be set out and taken advantage of, for the first time, on motion for a new trial.

The court did not err in refusing defendant’s application for a rehearing upon his motion for a new trial.

No objection is urged to the charge of the court; nor, indeed, could well be, for it certainly presented the law as fully and fairly for the defendant as the facts of the case warranted.

Taking the case as a whole, we are of opinion that defendant has been justly and legally convicted of a wilful, unprovoked, and premeditated murder, in which there are no pretences of extenuation. There is no error in the judgment, and it is, therefore, affirmed.

Affirmed.