Bell v. State , 92 Tex. Crim. 342 ( 1922 )

The State, through the Hon. Jesse M. Brown, Criminal District Attorney of Tarrant County, has presented a motion for rehearing calling attention to the fact that our opinion is not in harmony with Ellis v. State, 69 Tex.Crim. Rep., 154 S.W. Rep., 1010.

In 1917 the Legislature passed what is known as the "Interchangeable Jury Law" to apply only in counties maintaining three or more District Courts. (Acts 1917, ch. 78). This law has been carried forward in Vernon's "Complete Texas Statutes" as articles 5158 1/2 to 5158 1/2 i inclusive. That portion of Article 5158 1/2 f quoted in our opinion embraces the substance of articles 702 and 703 (Old Arts. 682 and 683) C.C.P., which relate to the selection of juries where the "Interchangeable Jury Law" is not in effect, and the evident purpose of Article 5158 1/2 f was to make the same provisions effective in counties coming under the latter law. This being true the laws should logically receive the same construction.

The point is made that the bill of exception presenting the question in the instant case fails to show injury to appellant, and although there was a clear violation of a statutory requirement, in the absence of injury shown, our opinion to be consistent with the Ellis Case, supra, should have held the error harmless. Duke v. State, 61 Texas Crim, Rep., 441, 134 S.W. Rep., 705 and Mays v. State, 50 Tex.Crim. Rep., 96 S.W. Rep., 329 are cited in the Ellis case as authority for the proposition there decided. An examination of those cases reveals that in neither was a violation of a statutory requirement involved, and in that respect are entirely different from the Ellis case. We cannot regard them as supporting the proposition decided in the latter case. The Ellis case makes no reference to Adams v. State, 50 Tex.Crim. Rep., 99 S.W. Rep., 1015, where the exact articles of the Code of Criminal Procedure were under consideration. The objection there was timely presented, and this court, speaking through Judge Henderson, upon the very point that no injury was shown, uses this language:

"It is no answer to this requirement of the statute to urge that no injury is shown; that appellant, by the means adopted, was furnished with a fair and impartial jury. We might go further, and say, according to this reasoning, the court might adopt any method outside of the statute which might secure a fair and impartial jury. The law has ordained a tribunal for the trial of criminal cases, and has provided the method of selecting a jury, and there is no authority to resort to any other method, and it is not incumbent on appellant to show that he suffered injury by the failure of the court to follow the statutory method."

The Adams case is in line with many authorities from this court prior to that opinion. We quote the language of Judge Wilson in Pierson v. State, 18 Texas Crim. App., 524:

"It has been well said: `The rule is well settled that it is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons. Large discretion must be confided to the trial court in the performance of this duty, nor will the action of the court in this behalf be made the subject of revision, unless some violation of the law is involved or the exercise of a gross or injurious discretion is shown.' (Thompson Merriam on Juries, Sec. 258.) And it has been repeatedly held by this court that in determining as to the fitness of a juror, the question is one largely of discretion with the trial judge, and his action therein will not be revised by this court, unless it be made apparent that the discretion has been abused to the injury of the defendant's rights, or that thelaw has been infringed." (Italics ours).

In Mason v. State, 15 Texas Crim. App., 534, the court was passing upon the trial judge's discretionary powers relative to individual jurors, and uses this language:

"He has the proposed juror before him; observes his manner of answering questions, his appearance and many other indications which cannot be brought before this court; and hence the trial judge is in a much better condition to pass upon the fitness of the individual to serve as a juror in the case, than this court can be from the record alone. Such being the case, this court will not revise such action of the trial judge unless it should be made apparent to us that the trial judge had abused the discretion confided to him, to the injury of the defendant's rights, or that he had infringed the law." (Italics ours.)

As analogous we cite Venn v. State, 86 Tex.Crim. Rep., 218 S.W. Rep., 1060; Revill v. State, 87 Texas Crim Rep., 1, 218 S.W. Rep., 1045; Mays v. State, 87 Texas Crim, Rep., 512, 222 S.W. Rep., 571; Wray v. State, 89 Tex.Crim. Rep., 232 S.W. Rep., 809; Matheson v. State, 92 Tex.Crim. Rep.. — construing article 553, C.C.P., providing that if defendant in a felony case is on bail the clerk shall deliver to him or his counsel a copy of the indictment and the effect of non-compliance therewith.

We regard our original opinion as in consonance with the well established authorities, and the Ellis case, supra, as out of harmony. In so for as conflicts with this opinion and Adams v. State, supra, the Ellis case is expressly overruled.

The motion for rehearing is denied.

Overruled.