Hickox v. State , 95 Tex. Crim. 173 ( 1923 )

We think our original opinion upon the manner of calling the special term of court in Upton County, and the formation of the grand jury sufficient without further elaboration save upon one point stressed in the motion for rehearing, viz: that the special term having been called and the grand jury organized without notice to appellant or his attorneys that no opportunity was had to challenge the array of grand jurors or any particular grand juror as provided in Article 409, 412, and 413 of our Code of Criminal Procedure. Without setting them out here, it will be observed that each of Articles 412 and 413 specify the grounds which must exist before the challenge in either case will be available to an accused. If the calling of the special term of court without notice prevented appellant from challenging in limine as required by Article 409 (supra) there exists no doubt in our mind under the authority of Carter v. State, 39 Tex. Crim. 345, 46 S.W. Rep., 599, that the same objection would have been available 687, 44 L.Ed 839; McCline v. State, 64 Tex. Crim. 19, 141 S.W. Rep., 977, and Robinson v. State,92 Tex. Crim. 527, 244 S.W. Rep., 236, 48 S.W. Rep., 508, Id.177 U.S. 442, 20 Sup. Ct., upon the motion to quash the indictment. But before an injury is shown two things must be made to appear: (a) that the right to challenge, or otherwise object, was denied, and (b) that a ground of challenge existed. For appellant to assert that a judgment against him should be reversed simply because he was denied an opportunity to challenge, if in fact he had no ground therefor, would find no support in reason or law. There being no attempt to show that any ground for objection or challenge to the grand jury as a whole or to any particular member thereof in fact existed, this ground of the motion for rehearing is without merit.

Appellant urgently contendse that we were wrong in not holding erroneous the admission of the statement of the witness Nevell that he and deceased had gone to the faucet to get a drink of water a short time before the difficulty occurred, upon the ground that it was the expression in the presence of the jury of an innocent motive on the part of deceased of which appellant was unaware, and therefore injurious to him from the standpoint of the defensive issue. Many authorities are cited by appellant in his brief which announce a correct proposition of law that has long been recognized by this court, that the words or acts of deceased showing an innocent intention or motive but undisclosed to accused are wrongfully permitted in evidence when they in any way impinge upon his right of self-defense. Under the facts in the record now before us we can not agree that the rule has in any way been violated. The killing occurred in a garage eighty feet long and forty feet wide. There was a door in the south side of the building and also in the east and west ends, but none in the north side. The witness Nevell testified that immediately before the killing he and deceased went from a point about the middle of the north wall to the southwest corner of the garage where the water faucet was situated to get some water. Neither appellant nor his son (Tom Hickox) was in the building at that time, because they each testified that they afterwards came in at the west door of the garage. Tom Hickox testified that he came in at said door and was himself going to get a drink of water when he came in contact with deceased and the fight which resulted in deceased's death started. Appellant testified that he came in at the west door after the fight was in progress. If either of the Hickoxes had been in the corner of the building near which the water faucet was situated at the time Nevell and deceased started to that portion of the building we can readily understand how the testimony that they were going after water might have been hurtful under appellant's theory of the case; but deceased and the witness having reached the point where the fight started at a time when both the Hickoxes were out of the building we fail to understand in what way it could have injuriously affected appellant's interests.

The twenty third ground of appellant's motion for new trial is based upon the conduct of the spectators in the courthouse which appellant asserts resulted in influencing and prejudicing by public opinion the jury against appellant. Subdivisions A and B of said twenty third paragraph are as follows:

"(a) That during the introduction of testimony the court house was usually fairly well filled with spectators; that during the introduction of testimony when the State would apparently make a point in its favor in the argument on the admissibility of testimony, at various times scattered through the trial, the audience would cheer; that the court would at each time call upon the audience to refrain from applauding; that on the third or fourth occasion of such applause said applause became so general and noisy in the court room, that the court stated in substance, after rapping loudly and finally securing quiet so he could be heard, that if the crowd made any further demonstration and did not keep quiet, he would be compelled to clear the court room and put the audience out of the room; that thereafter during the introduction of testimony, there was a slight ripple of applause only once or twice; that nothing was said by the court to the jury regarding same.

"(b) That after the closing of the evidence in the case, F.L. Snodgrass, attorney for the defendant, was making the closing argument for the defendant, said attorney for defendant stated in substance, in referring to the deceased, that the deceased was at the dance comfortably full of bootleg whisky, or some other kind of whisky; whereupon attorney, Thurmond, a private prosecuting attorney, who closed the argument, and who was sitting just behind said Snodgrass at a table, interrupted said Snodgrass, saying in substance, `There is not a particle of testimony here to show that the deceased had any whisky or had drank a drop of whisky;' whereupon, said Snodgrass stated in substance, `There is testimony in the record; one witness testified deceased asked him to take a drink with him, and other witnesses testified he was intoxicated. He, therefore, not only was drinking, but had whisky and was inviting other people to drink it.' Thereupon the wife of the deceased, who was sitting behind the railing within the bar some ten or fifteen feet behind said attorney Snodgrass, arose from her seat, and screaming in a loud broken voice, `It's a lie, it's a lie,' and started in the direction of Snodgrass swinging her arms over her head exclaiming, `Let me get to that old thing I'll kill him, I'll kill him.' She made a step or two and staggered and parties threw their arms around her and she was assisted out of the court room sobbing and crying. During all this time said Snodgrass was standing before the jury saying nothing waiting for the excitement to subside to resume his argument. The jury was not admonished in any way concerning this matter."

Subdivision C of said paragraph 23 will be condensed by us. Mr. Thurmond, one of the attorneys representing the prosecution, while making the closing argument for the state, used this language:

"Judge Snodgrass related to you that when he was but twenty one years of age he came to Coleman and there he met this defendant, and that he has been his friend ever since then. I became acquainted with this deceased when the people of my community gathered together at the train _____"

At this point he was interrupted by an objection from Judge Snodgrass that there was no evidence authorizing Mr. Thurmond to make the statement he was about to make and challenged his right to do so, whereupon Mr. Thurmond retorted that neither was there testimony in the case authorizing Snodgrass to tell the jury how long he had been acquainted with appellant, to which Mr. Snodgrass assented; Mr. Thurmond then retorted, "then you are willing to do something before the jury and are unwilling to accord the State the same privilege?"

The motion for new trial further alleges that after this statement from Thurmond the audience applauded "— by stamping their feet, clapping their hands, whistling, yelling and making a terrific noise and demonstration against the defendant, which demonstration was tremendously vociferous and evidenced unmistakably a strong sentiment and prejudice against this defendant."

The motion further recites: "In this connection, F.L. Snodgrass, attorney for defendant, specially states and says that in his thirty-seven years of experience in the practice of law at the bar, this demonstration exceeded by far any he had ever witnessed on any previous occasion, and was equal in noise for the time same lasted to any demonstration he had ever witnessed in any political discussion in any court house in Texas.

"W.A. Anderson specially says he has practiced law for thirty-one years and has participated in the trial of a great many cases, but has never before witnessed such demonstration in the trial of any case of such sentiment and prejudice against a man on trial; that it was more like a demonstration at a ball game or horse race.

"The jury was not admonished in any way concerning said matter."

It is further averred as a part of said paragraph twenty-three that appellant and his attorneys were ignorant of the prejudice manifested by the audience until the same was exhibited during the trial, and alleges that if they had known of the existence of such prejudice they would have applied for a change of venue on the ground of such prejudice. This paragraph of the motion for new trial is supported by the affidavits of F.L. Snodgrass and W.A. Anderson who state upon oath that the allegations in said paragraph are true and correct. The state filed a controversion to this paragraph of the motion but supported it only by the affidavits of the jurors who sat during the trial of the case. They in no way controvert the truthfulness of the matters alleged in that ground of the motion, but in fact their affidavits in effect admit much therein asserted. They claim that the applause on the part of the audience during the closing argument of Mr. Thurmond was not in any way considered by them in arriving at their verdict and had no influence upon them, and that the conduct of the widow of the deceased likewise had no influence upon them. In the controversion filed by the state the court is asked to hear evidence upon the matters asserted. The original order of the court upon the motion is silent upon this point, but a corrected order now appears in a supplemental transcript which shows that the court in fact heard no evidence upon that ground of the motion but acted solely upon the affidavits of the State and appellant. We are now confronted with this condition: the matter alleged by appellant as to the misconduct of the audience is supported by the affidavits attached thereto; the truth of this is in no way controverted by the State. We attach little importance to the affidavits of the jurors as to what may or may not have influenced them in arriving at their verdict. A new trial should not be granted because the audience applauded counsel for the State when the demonstration was promptly suppressed by the court. Parker v. State, 33 Tex.Crim. Rep., 21 S.W. Rep., 604, 25 S.W. Rep. 967. But the motion avers that the audience was in no way reprimanded by the court or the applause suppressed incident to Mr. Thurmond's argument, and this assertion is verified by the affidavits referred to. If the audience was only expressing their approval of the speech of their favorite attorney it might well have been mistaken by the jury for a demonstration in favor of the cause he represented and therefore against appellant. Our law never contemplated that a man should be tried for a grave offense involving his life or liberty under circumstances which appears to have existed during the instant trial. In the case of Hamilton v. State, 36 Tex. Crim. 372 complaint was made that the bystanders applauded the argument of the district attorney. The court explains in that case that when the applause occurred he commanded silence, which was obeyed, and he ordered the sheriff to arrest any parties so offending, and to prevent a repetition; that such applause was principally in the gallery of the court room, and could not, for the moment, be controlled by the court or the sheriff, nor could it be ascertained afterwards who the offending parties were. Commenting upon this state of affairs this court said:

"Such conduct in the trial of a case is certainly very reprehensible, and is calculated to greatly prejudice the rights of a defendant on trial with the jury; and when such conduct occurs it should be the duty of the court to use every means in his power to ascertain the guilty parties, and to visit upon them the severest punishment that the law authorizes; and even then it is doubtful whether such action will withdraw from the jury the effect that may be produced upon them by the plaudits of a mob approving the sentiments announced by the prosecution. Where such conduct does occur, the judge should scan the record very carefully, and if it is probable that the jury were influenced thereby, a new trial should be granted."

In the instant case the State produces no evidence controverting the truth of the allegations as to what occurred during the course of the trial while evidence was being introduced relative to applause of the spectators, nor as to that occurring during the argument of counsel representing the state. If such conduct did not occur as is alleged and verified or if the same has been exaggerated the State should have met the issue either by affidavits or proof. This it has not done. We are unwilling to permit a conviction to stand under circumstances revealed by the record in this cause. As to the ultimate guilt or innocence of appellant we are not concerned, but only that he have a fair trial. We are persuaded from the record that it is impossible for any man to have received a fair and impartial trial under the circumstances shown. The court should have sharply reprimanded the audience and at least given the jury to understand that such conduct was offensive to the orderly procedure of the trial; if this did not have the desired effect he should have promptly cleared the courtroom of spectators if that was the only way to preserve order; if this could not be accomplished then the defendant should have been promptly granted a new trial. What we have said has reference to the conduct of the public who attended the trial rather than to the regrettable incident produced by resentment of deceased's widow as some statement of the attorney for the defense in his argument, although it is to be hoped this will not occur again.

The prosecution originated in Upton County. Before the order changing the venue was entered and before pleading to the merits of the case, a motion to quash the indictment was filed, on the ground, among others, that there was no sufficient order showing the presentment of the indictment. This part of the motion to quash was overlooked in our original opinion. The minutes of the special term of court were offered supporting this ground of the motion. They show the organization of the grand jury and then proceed as follows:

"— And after being sworn by the court as Grand Jurors and receiving the instructions of the Court touching their duties as such, retired in care of the proper officer to enter upon their deliberations; then having returned into open court in a body and each member thereof having answered `present' to his name as the same was called by the Clerk of said Court, presented in open court the following indictment — Murder — which was ordered by the Court to be filed. Then reporting no further business before them were discharged by the court."

No offer was made to correct the order of presentment but the same appears in the bill of exception to the court's refusal to quash as hereinbefore set out. Article 446, C.C.P., reads as follows:

"The fact of a presentment of indictment in open court by a grand jury shall be entered upon the minutes of the proceedings of the court, noting briefly the style of the criminal action and the file number of the indictment, but omitting the name of the defendant, unless he is in custody or under bond."

It will be observed that the foregoing Article requires that there shall be entered upon the minutes of the court the file number of the indictment with the style of the criminal action, omitting the name of defendant unless he is in custody or under bond, but does not require that the offense shall be named. The bill of exception recites that appellant was in jail at the time the indictment was returned against him and there appears to be no reason why the provisions of Article 446 were not carried out even to naming the accused. Prior to 1876 the article in question read as follows:

"The fact of a presentment of an indictment in open court by the grand jury shall be entered upon the minutes of the proceedings of the court, noting briefly the style of the criminal action and the offense charged."

Many authorities will be found construing the article both prior to and since its amendment. Hardy v. State, 1 Tex. Cr. App., 556; Denton v. State, 3 Tex. Cr. App., 635; Cox v. State, 7 Tex. Cr. App., 495; English v. State, 18 Tex. Cr. App., 679; Strong v. State, 18 Tex. Cr. App. 119; Rowett v. State, 23 Tex. Cr. App., 197; Massie v. State, 52 Tex.Crim. Rep., 107 S.W. Rep., 847. Other authorities may be found collated in Vernon's Crim. Stat., Vol. 2, under said Article 446 and in Branch's Ann. Pen. Code under Section 472, page 245. Under the present statute it is not necessary for the minutes of the court to show the offense charged against an accused and it was held in Massie (supra) to be surplusage to do so. It will therefore be seen that so far as the record discloses the only "presentment entry" shows a recital not necessary and omits entirely those things requisite to identification of the indictment as the one returned by the grand jury, viz: the file number of the indictment and the style of the criminal action and in the instant case the name of the defendant could with propriety have been inserted.

We do not review at length the authorities referred to but an examination of them will disclose that the entry in the present case is entirely insufficient. The word "murder" identifies nothing. It could apply to one person or one indictment as well as another; the number and style of the criminal accusation, however, would definitely fix the identity of and presentment of the indictment. Since the above decisions were rendered construing the article in question the actual language of the statute has been re-enacted by the Acts of 1879, 1895 and 1911. Notwithstanding the many decisions of this court construing the language of the said Article 446 the Legislature has made no change therein, but in view of them it from time to time has re-enacted the same.

We are not inclined to order a dismissal of the prosecution because of the incomplete "presentment entry" of the indictment in Upton County but believe the cause should be remanded with instructions to the court in Tom Green County to take such steps as may be found necessary under the facts relative to the entry in question. If the entry on the minutes be in fact sufficient, and it incorrectly appears in the record before us Hollingsworth v. State, 87 Tex.Crim. Rep. will throw some light on the procedure.

For the errors discussed, the motion for rehearing is granted, the judgment of affirmance set aside, and the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.