Conviction of murder in the first degree, the punishment assessed being the death penalty.
While impaneling the jury, the juror Atkins was asked the question if he had conscientious scruples against the infliction of death as a punishment for crime. He answered this in the negative, and was accepted by both parties. He was the first juror taken. The organization of the jury continued until three other jurors were selected, and *Page 594 the court took a recess. During this recess Atkins, through an officer in charge of the four jurors, sent a message to the court that he desired to make an explanation in reference to a mistake in answering the question as to his conscientious scruples in regard to inflicting the death penalty. This explanation was made privately to the court. His explanation was that he misunderstood the question, and thought it was meant to inquire of him if he had conscientious scruples about the way the man was killed. But after his selection and after hearing the examination of the other jurors, and the explanation of the court to them as to what was meant by this question in regard to the conscientious scruples, he discovered his mistake in answering the question when he was being examined, and stated to the court that he did have such conscientious scruples. The court thereupon informed counsel for prosecution and the defense of this explanation, whereupon State's counsel asked to be allowed to further examine the juror. Objection was urged by appellant on the ground that he had already been accepted by both sides, sworn and placed in the jury box. This was overruled. Whereupon the court said, "Mr. Atkins, you informed me a few minutes ago that when you were being interrogated by counsel, you did not understand the question? A. Yes, sir. Q. I will ask you now whether or not you have conscientious scruples in regard to the infliction of the punishment of death for crime? A. Yes, sir. Q. You answered when you were being interrogated at first, that you did not have. A. Well, the way I understood that was, when he asked the question, did I have any conscientious scruples about the way this man was killed. That was the way I understood the question. Q. You did not understand the question to be whether or not you were opposed to inflicting death as a punishment for crime? A. No, sir; that is not the way I understood it." The juror then stated, in response to further question, that he was opposed to the infliction of the death penalty for crime under any circumstances. The prosecution then challenged the juror. Counsel for defendant excepted to the court permitting the juror to be recalled for this cross-examination on the ground before stated. The court then sustained the challenge, and the juror was excused. The court informed counsel that upon further reflection he was inclined to the opinion that the juror would have to remain on the jury, or else the whole panel would have to be discharged, and that he would discharge all of the jurors thus far selected, reset the case and draw another venire. Counsel interposed an objection to this procedure. The court then stated to counsel he could confer with his client. There were then eight jurors in the box, who were retired from the courtroom. Whereupon the following statement was made by the court: "Now, upon investigation, the court is inclined to the opinion that the juror Atkins would have to remain on the jury, or else the whole panel would have to be discharged;" and asked appellant what objections he had to discharging the eight jurors already selected, resetting *Page 595 the case, and drawing another venire. Appellant in person urged his objection. The objection was urged that the court had no right to discharge the panel without the consent of defendant, that he could not be placed again on trial for the same offense. The State demanded that the case proceed with the organization of the jury. The court remarked: "The State desiring it, and the defendant objecting to discharging the panel and resetting the case, I will proceed with the organization of the jury." And this was done without Atkins' presence on the jury. It is well settled that after the selection of a juror in a capital case a peremptory challenge can not be interposed; and this whether the jury has been completed or not. However, that question is not in the case. The question here presented is, whether or not a cause for challenge can be interposed after the juror has been selected. It will be noted that in capital cases the procedure is different from that obtaining in noncapital cases, in this: in a capital case each juror is impaneled as he is selected, and in noncapital cases the jury is impaneled as a whole. It is also well settled that where a juror has been selected, a challenge can not be interposed for a cause known to the party seeking to interpose the challenge at the time of impaneling the juror. But here we have a case in which the juror mislead the court and counsel. The juror seems to have been thoroughly investigated on his voir dire in regard to his having conscientious scruples against the infliction of the death penalty, and by having answered in the negative misled counsel for the State, and upon his answer was accepted. In Horbach's case, 43 Tex. 242, Chief Justice Roberts said: "We know of no law or established practice under the law which sanctions the peremptory challenge of a juror by either party when thus placed on the jury, whether it is full or not. There may be discretion in the court for excluding or standing aside a juror after he is thus chosen for good cause shown at the time why the juror can not or ought not to serve on the jury? In Baker v. State, 3 Texas Crim. App., 525, Judge Winkler, for the court, uses this language, after approving the Horbach decision: "This clearly indicates that each person is to be examined separately and subject to challenge either for cause or peremptorily separately; and these things are to be done before the person is impaneled; and that the challenge afterwards would not be allowed except for some cause not discoverable on the examination in person and to be set out in the application for failing to make the challenge." These cases were approved in Drake v. State, 5 Texas Crim. App., 649; see also Evans v. State, 6 Texas Crim. App., 513. The same rule is approved in Mayers v. Smith, 121 Ill. 442. And in support of the same proposition see Jefferson v. State, 52 Miss. 767; McGuire v. State, 37 Miss. 369; Lewis v. State, 9 Miss. 115; 12 Enc. of Plead. and Prac., 440, note 2. So far as we are advised the rule is uniform that where the cause for challenge exists, and the juror has been interrogated in regard to it and denies the ground of challenge, and it is subsequently *Page 596 ascertained that it did exist, it would constitute cause for challenge. Some of the authorities hold it is discretionary with the court and will not constitute error if that discretion is correctly exercised. In Ellison v. State, 12 Texas Crim. App., 557, it was held: "Sickness of the juror, occurring after being impaneled, would not constitute ground for setting aside the juror, but in that event the entire jury should be discharged and a new jury constituted." But that case has no application to the question at issue. Sickness of a juror is not a cause for challenge, although it might be a reason for not impaneling a juror. So we hold that, under the authorities, the action of the court in this matter was not illegal and the ruling was correct in sustaining the challenge of the State under the circumstances.
Baxter was mayor of the town of Howe, where the killing occurred, and testified that he noticed the actions of appellant near the depot in said town; that he was dancing around and hallooing, picking up rocks and gravel, and throwing them; that his gun was leaning against the house, right close to him; that he informed the marshal, McCoy, and instructed him to arrest appellant for disturbing the peace. Objection was urged because this was hearsay. Same witness also testified that the deceased (Jordan) had been acting as peace officer in the town of Howe since before Christmas; that a short time before the shooting witness saw defendant east of the depot, near some grain houses. Here the witness practically repeats the testimony as in the former bill, that these facts were communicated to the city marshal, with instructions to arrest appellant for breach of the peace. Objection was urged upon the ground that these matters did not occur in the presence of defendant, nor were they communicated to him, and because hearsay. McCoy testified, in substance, that he was instructed by the mayor to arrest defendant and he informed the mayor that he was not able himself, being sick; and the mayor instructed him to deputize persons to go with him to arrest defendant, which he did, deputizing deceased and Allsup. This was objected to because hearsay, not having been made in the presence of defendant. Further objection was urged to the testimony of McCoy to the effect that the mayor communicated to him over the phone in regard to coming down and arresting appellant, and that he came down to the town, and the mayor there instructed him to arrest defendant on the charge of disturbing the peace. This was objected to as a repetition, and because hearsay. We are of opinion that all the above testimony was admissible. If appellant disturbed the peace, the mayor could order his arrest. The disturbance occurred in his presence and hearing, and the marshal would unquestionably have the authority to summon a posse to assist in the arrest. The facts in this connection show that appellant was fully aware of the official capacity of McCoy; and the further fact that deceased had been acting as a peace officer. This occurred by reason of previous arrest of appellant and attempts on the part of Jordan to arrest him for misconduct *Page 597 in the town of Howe. Appellant had ill will towards deceased and had so stated. The fact that appellant did not hear the mayor order the arrest would make no difference under the circumstances of this case. The city marshal was authorized himself to make arrest for disturbances of the peace without warrant, and he was further authorized to summon a sufficient number of citizens as a posse to assist him in making the arrest.
Appellant urged objections to the conduct of the State's counsel in placing parties in position before the jury to illustrate the relations of the parties to each other during the trouble which ended in the homicide. This was done while the witness Allsup was upon the stand — he being one of the posse summoned by the marshal and assisted in the arrest. He was fully cognizant of all the surroundings, positions of the parties, and was an eyewitness to the entire transaction. We think this was legitimate. We have been cited to no authorities to show error; and upon the same theory that the introduction of diagrams are admissible, we think this testimony was admissible.
Allsup was also permitted to testify that a great number of people go to the depot in the town of Howe, and many of them go to buy tickets, and some to "knock around." Appellant objects that the witness could not know for what purpose these parties went to the depot, as they may have gone there for other purposes and different objects, and it was calculated to prejudice the jury. This is all the bill presents. If the witness knew as a fact, and he testified that he did, that these parties went there for the purposes indicated, he could state it as such fact. We do not understand how this could have prejudiced the jury against the appellant. The bill fails to show any prejudice or what bearing it could have had upon the case that was injurious to appellant.
The confessions of appellant were introduced in evidence. The predicate for this was the testimony of Baxter, who stated that he cautioned appellant and gave him the warning. Witness states, "I told him (defendant) he had been arrested for killing Albert Jordan, and he did not have to make a statement; and if he did, it would be used as evidence against him and not for him upon the final trial. I gave him that warning immediately after he was put in the store. * * * I was not an officer — nothing more than the mayor. At the time he was put in the store he was in my charge really. The marshal was there; he brought defendant up there from the scene of the killing, about 300 yards from the store where defendant was brought. Russell, the sheriff of Grayson County, authorized me over the 'phone to take charge of defendant and lock the store. I did not see Russell. I talked to him over the 'phone. I could not tell when I got to the 'phone," etc. The grounds of objection were that the witness was not an officer and had no legal authority to warn defendant. This would be immaterial. It is not necessary as a prerequisite to the introduction of a confession that the party giving the warning should be an officer. He seems to have *Page 598 been in charge of appellant, under the authority of the sheriff. We think the predicate was sufficient. About twenty minutes after defendant had been placed in the store, and about 300 yards from the difficulty, defendant made this statement: "Al (speaking to Al Allsup), you got me, but, God damn you, I got one of your men before you did." The objection is that he had not been warned; and further it was not made at the time of the arrest, but after his arrest, and after he had been taken to the store, some 300 yards distant from the difficulty, etc. He also made the same statement to Alsup about an hour after the arrest. The court qualifies each bill with the same statement, at some length setting out the warning and attending circumstances in regard to confessions. The warning, as before stated, was sufficient; and the first confession was made within about twenty minutes, and the other in about an hour after the warning, and in a conversation with the same witness Allsup. The length of time elapsing between the warning and the confession is not necessarily the criterion for the introduction or rejection of confessions. If the warning occurs and the confession is made with the warning in mind, it is inadmissible. We think this rule is well settled. We further hold that under all the circumstances this confession was sufficiently connected with the warning to admit it.
There are no exceptions to the charge. But it is urged that the evidence is not sufficient to support the extreme penalty of the law. If the testimony of the witnesses Davis, Phares and Turner is to be believed, then all the necessary facts to show express malice were clearly proved. On the day of the killing appellant had a double-barrel shotgun and remarked, in the restaurant, that he intended to kill McCoy and Albert Jordan (deceased) if they undertook to arrest him. He was armed with a double-barrel shotgun, breech-loading. "He broke his gun at the breech, so as to expose the shells. The gun was loaded and defendant said one of the shells was far McCoy and the other for Albert Jordan." The witness Phares testified that on the day of the killing he saw appellant on the railroad some distance south of Helvey, and walked into Howe with him. He had a double-barrel shotgun and several loaded shells. This was about 4 o'clock in the afternoon. "I had a conversation with him. He said that he and John Watkins had been in Howe that day, and that Watkins had gone to Sherman for some whiskey and would return to Howe on the 6 o'clock train. Watkins was a married man, living north of Howe about two and one-half miles. Defendant was living with him. Defendant said that he had been to Watkins to feed the stock and that he was on his way back to Howe to meet Watkins when he returned with the whisky. Defendant said he had been arrested his last time at Howe, and that he would kill McCoy and Allsup if they undertook to arrest him. He said he would kill anybody that looked cross-eyed at him. I asked him to lend me some loaded shells, and he handed me two No. 4 shells, and after he had *Page 599 handed them to me he said, `Those are No. 4; give them back to me; I may need them.' * * * About ten days or two weeks before this I saw deceased pursuing defendant out of town; they were running. In that conversation on the railroad, Black said he was not going to be arrested, and that Watkins had a pistol and would stick to him." Tucker stated that he lived at Howe and knows defendant. "On the day of the shooting I saw defendant at the depot, and he asked me if Albert Jordan had said anything about arresting him. I said no. He then said, `If he undertakes to arrest me I am going to fix him.' He had a shotgun at the time." The evidence shows that late in the evening appellant was creating noise and confusion, hallooing, and throwing rocks and gravel, and had a shotgun with him. This attracted the attention of the mayor, who ordered his arrest. The marshal summoned deceased (Jordan) and Allsup, and the killing occurred in the attempt to arrest. Defendant fired the only shot during the difficulty into the body of Jordan. It is not necessary to go further into the details of the testimony attending the tragedy. We believe this evidence is sufficient to justify the verdict. There being no error in the record, the judgment is affirmed.
Affirmed.