Walker v. State , 104 Tex. Crim. 207 ( 1926 )

The correctness of the disposition of appellant's complaint in Bill of Exceptions No. 1 is called in question. It is believed that upon the reasons stated in the original opinion, the bill fails to show error. All that can be ascertained from the bill is that three of the veniremen declared on their voir dire that they had conscientious scruples against the infliction of the death penalty as a punishment for crime. The appellant's challenge for cause was overruled but he exercised peremptory challenges. In selecting the jury all of his peremptory challenges were exhausted. If the court's ruling was wrong, the facts stated in the bill would not require a reversal for the reason that it is made apparent that the veniremen did not sit upon the jury. It does not appear that any juror who was objectionable was impaneled. As we understand it, the precedents are to this effect: If it appears from the bill of exceptions that a good challenge for cause of a juror was erroneously overruled, the peremptory challenges of the appellant were exhausted, and an objectionable juror sat in the case, a reversal will be authorized. Rothschild v. State, 7 Texas Crim. App. 540; Branch's Ann. Texas, P. C., Sec. 542, in which many cases are cited. Unless the bill shows that one or more of the jurors who tried the case was an objectionable juror, the error of the court in overruling a challenge for cause made by the defendant will not work a reversal. Myers v. State, 7 Texas Crim. App. 653; Loggins v. State, 12 Texas Crim. App. 72; Burrell v. State, 18 Texas Rep. 730; Villareal v. State,61 S.W. 716; Mays v. State, 50 Tex.Crim. Rep.; Hudson v. State, 28 Texas Crim App. 338; and other cases collated in Branch's Ann. Texas P. C., Sec. 543.

We are not to be understood, however, as intimating that the bill shows a good challenge for cause upon the part of the appellant. So far as we are aware, the exact question has never been presented to this court. We do find in other jurisdictions, however, with a statute like ours, that the possession of conscientious scruples against the infliction of the death penalty for crime is not available to the accused as a challenge for cause. See State v. Compagnet, 48 La. Ann. 1470, 21 So. 46; Cyc. of Law Proc., Vol. 24, p. 307, Note 75.

The motion for rehearing is overruled.

Overruled.