Warren v. State , 130 Tex. Crim. 448 ( 1935 )

The appellant was tried and convicted of the offense of murder, and his punishment was assessed at death.

It appears from the record that about the 6th day of February, A.D. 1934, the appellant, Bernard LaCoume and Roy Cusack stole an automobile and went from the city of Galveston to Angelina County, where, on the night of February 9, 1934, they robbed and killed Charley Cansler by striking and beating him with a pistol and some blunt instrument, a better description of which was to the grand jurors unknown, and by packing tightly into the mouth of said Charley Cansler a piece of cloth. The appellant and Cusack were subsequently arrested in the city of Galveston and upon being questioned the appellant informed the officers where the safe which had been taken from the home of deceased was buried in a garage. Upon receiving such information from the appellant, the officers proceeded to the garage and recovered the safe and some valuable papers belonging to deceased. The appellant, Cusack and LaCoume were seen at Corrigan in Polk County on February 8, 1934, where they purchased two gallons of gasoline. On the night of February 8th the same three parties were seen at the filling station of Dave Cockran in the town of Lufkin, Angelina County, where they traded the wheel and rim of the spare which was on the rear of the Chevrolet sedan to the filling station for some gasoline. The appellant had lived in the community where deceased lived and was thoroughly familiar with the surroundings of deceased's home.

By bill of exception the appellant complains of the action of the trial court in declining to grant his request to discharge the juror M. F. Cochran on the ground that before the jury was completed he learned that said juror was related by marriage to J. J. Collins, private prosecutor in the case, within the prohibited degree, that is, that the juror was a first cousin of the wife of the said J. J. Collins, private prosecutor. The district attorney objected to the discharge of the juror and the court sustained his objection, to which appellant excepted and by proper bill of exception brings the matter before this court for review.

Art. 616, C. C. P., reads as follows: "A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury." Sub. 10 of said article provides that where a juror is related within the 3rd degree of consanguinity or affinity to the person injured by the commission of the offense, or to the private prosecutor, if there be one, such juror is subject to challenge for cause. It appears from the bill of exception that if the relationship between the juror and the private prosecutor had been known to the appellant or his counsel before the juror was accepted, he would have availed himself of his legal right to challenge said juror for cause because immediately upon the matter being brought to his attention, and before the jury was completed and finally sworn, he requested that the juror be discharged, which the court declined to do. It occurs to us that under the circumstances the court erred in not complying with appellant's request. What prompted the legislature to enact Sub. 10, of Art. 616, C. C. P., making it a legal ground to challenge a juror for cause who was related within the third degree of consanguinity or affinity to the person injured by the commission of the offense, or to the private prosecutor, if there be one? Obviously upon the presumption that such relative of the injured person or the private prosecutor was biased in favor of the party offended or prejudiced against the offender, and therefore presumptively not an impartial juror. Sec. 10 of Art. 1 of the Bill of Rights (Const.) provides that the accused shall have a speedy public trial by an impartial jury. It is also the policy of the law that the trial shall be alike fair and impartial to the accused and the State. The greater and more horrible the crime, the greater and more imperative the necessity that these safeguards shall be constantly looked to and kept in mind. In such cases when the popular mind is inflamed and popular indignation becomes tense and runs high, it is the part of a fearless and manly judiciary to uphold the standard of the law and to vindicate its majesty and integrity regardless of all consequences. When the storm of public indignation has abated and the mind has recovered its equilibrium so that it may calmly and sedately deliberate upon the consequences of hasty action under disturbed conditions, it will commend the courage of a judiciary in upholding the majesty of the law.

It occurs to us that if the trial court had seriously considered the appellant's request and had examined the statutes hereinabove referred to, he no doubt would have complied with the appellant's request at that stage of the trial and discharged the juror.

In support of the views herein expressed we refer to the following authorities: Evans v. State, 6 Texas App., 513; Roberts v. State, 30 Texas App., 291, 17 S.W. 450.

For the error pointed out, the judgment of the trial court is reversed and the cause remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.