Rushing v. State , 117 Tex. Crim. 288 ( 1930 )

In the motion for rehearing the appellant renews his complaints of the various matters discussed in the original opinion.

As reflected by the bill of exception, the action of the court with reference to the voir dire examination of the members of the jury panel was not an undue abridgement of the appellant's conceded right to acquire, by examination of the jurors, information upon which he might intelligently form a conclusion with reference to challenges. In the action of the court upon the subject nothing is perceived which is in conflict with the announcement of this court in the case of Plair v. State, 102 Tex.Crim. Rep.,279 S.W. 267. In the Plair case it was held that it was an undue restriction of the appellant's right to deny him the privilege of propounding a proper question to the members of the panel individually, they being assembled in the court-room for examination. The question involved was whether in the minds of the jurors there was a feeling against the suspended sentence law as would prevent them from giving the accused the benefit of such law if the facts proved were such as to demand it. In the present case, the question was whether each individual juror was in favor of the law of the presumption ofinnocence. In denying the appellant's counsel the privilege of asking the question mentioned the court stated to counsel that he was privileged to explain to the jurors what the law was, and what the court would charge on the law of reasonable doubt and presumption of innocence, and that counsel might ask them if they were prejudiced against either of said laws. Upon the counsel's refusal to adopt such procedure the court stated to the members of the jury that they were to presume that the accused was not guilty until his guilt was proved by legal and competent evidence beyond a reasonable doubt, and that their oaths as jurors would bind them to obey the law; that if any of them were prejudiced against the law of reasonable doubt or presumption of innocence, or if upon that subject there was any hesitation upon the part of any of the jurors they should indicate it. As the bill is understood, it reflects the complaint of the action of the court in refusing to allow counsel to ask each of the jurors whether he was in favor of the presumption of innocence and reasonable doubt. The bill does not manifest the complaint of the refusal of the court to permit each of the jurors to state, in response to a proper question, whether he would accord or deny the benefit of the law on the presumption of innocence and reasonable doubt. As the matter is presented, the procedure followed is not deemed such as to warrant a reversal of the judgment.

Nothing in the decision of this case is intended to change or modify the announcement of this court touching the respective rights of court and counsel in the selection of the jury panel, as reflected by the opinions of this court in the cases of Kerley v. State, 89 Tex.Crim. Rep., 230 S.W. 163; Reich v. State, 94 Tex.Crim. Rep., 251 S.W. 1072; Barnes v. State (Texas Crim. App.), 88 S.W. 805; Gilmore v. State,37 Tex. Crim. 81, 38 S.W. 787; Plair v. State,102 Tex. Crim. 628, 279 S.W. 267, and Ward v. State,116 Tex. Crim. 292, 31 S.W.2d 638. The right of the accused for such purposes to interrogate the individual juror, is, in the mind of the writer, not open to question; nor is the judicial discretion of the court to control the extent of the examination and limit it to proper questions debatable. As stated above, an inquiry, as in the present case, as to whether the jurors are in favor of ageneral law of the state is not deemed a proper question.

From bill No. 6, as qualified, it appears that in his argument to the jury counsel for the appellant said that "a hard-working negro of good reputation should not be convicted on the evidence in this case." In reply State's counsel said: "The defendant's reputation is not good. If it were he would not be hanging around such a place."

The court refused to instruct the jury to disregard the argument of State's counsel mentioned. The bill does not inform this court whether the appellant's reputation was an issue in the case or whether there was testimony upon the subject. Neither does the bill disclose to what reference was made by counsel for the State in using the language "hanging around such a place."

A further discussion than that made in the original opinion of the other matters of which the appellant complains is unnecessary.

The motion for rehearing is overruled.

Overruled.

ON SECOND MOTION FOR REHEARING.