Saffel v. State , 121 Tex. Crim. 444 ( 1932 )

One ground of appellant's motion for rehearing is predicated upon the assignment that we were in error in holding that the omission of the word "not" in the last sentence of paragraph 10 of the charge could not have misled the jury in fixing the punishment. As supporting the contention we are referred to Perkins v. State, 117 Tex.Crim. Rep., 37 S.W.2d 163; Shannon v. State, 117 Tex.Crim. Rep., 36 S.W.2d 521; Henry v. State (Texas Crim. App.), 54 S.W. 592. It would extend this opinion on rehearing to unreasonable length to review the cases mentioned, but from our examination of them it is thought that by reason of varying facts they do not furnish a precedent supporting the contention here urged. Upon the question we think Clampitt v. State, 3 Texas App., 638, and Goolsby v. State, 59 Tex.Crim. Rep., 129 S.W. 624, are much stronger cases for appellant than those mentioned. In this connection Cromwell v. State, 59 Tex.Crim. Rep.,129 S.W. 622, is also noted. In Goolsby's case the principle which seemed to govern was that "where a word is omitted from a sentence that an intelligent mind would supply to make the sentence complete, it would not be cause for reversal." It was recognized in the original opinion that if the sentence from which the word "not" was omitted had been the only place in the charge where the subject was treated such omission would have called for a reversal. However, the only way article 666, C. C. P., may be given effect is to consider the charge in its entirety. When that is done in the present case, having reference to what the court had told the jury in paragraphs 9 and 11, and considering them in connection with the whole of paragraph 10, we think it not unreasonable to reach the conclusion that the omission complained of could not have injured appellant.

Serious complaint is made in the motion for rehearing at our disposition of appellant's bill No. 2 regarding the juror Phelps. Chief reliance is had on general statements regarding "objectionable" jurors found in Kerley v. State, 89 Tex. Crim. 199,230 S.W. 163. The opinion in that case was written by Presiding Judge Morrow, and was dealing with an entirely different record than is found in the present case. In Kerley's case accused was held to have been entitled to fifteen peremptory challenges, and the court erroneously allowed him only ten. Therefore, while the language in the motion quoted by appellant from the opinion in Kerley's case is in general terms, it must be read in connection with the facts there dealt with. That opinion was written in 1921; in 1928 the same author wrote the opinion in Johnson v. State, 108 Tex. Crim. 499,1 S.W.2d 896, where he was dealing with the exact question found in the present case, and the views there expressed support the conclusion announced in our original opinion. See, also, Hudson v. State, 28 Texas App., 338,13 S.W. 388 (which is quoted from with approval in Johnson's case); Loggins v. State, 12 Texas App., 65; Carter v. State,45 Tex. Crim. 430, 76 S.W. 437; Grille v. State (Texas Crim. App.), 20 S.W.2d 424; Cox x. State, 115 Tex. Crim. 83,29 S.W.2d 346.

It is not thought the two other points presented in the motion for rehearing require further discussion than is found in our original opinion. The conclusion there reached regarding them is deemed correct.

The motion for rehearing is overruled.

Overruled.