Hoebrecht v. State , 126 Tex. Crim. 648 ( 1934 )

The offense is robbery; the punishment, confinement in the penitentiary for ten years.

Julian Rankin, who was proprietor of a tourist camp near the city of Austin, testified, in substance, as follows: On January 13, 1933, between 12 and 1 o'clock in the morning appellant and some other men came to his place of business and requested that he rent them a cabin for the night. After inspecting one of the cabins the parties advised him that they would take it. He was preparing for them to register when appellant and Armin Cichanosky exhibited pistols and took from his possession three hundred and twenty-five dollars in money, some diamond rings and other personal property. The parties then tied his feet and hands and drove away. He succeeded in notifying the officers, who immediately went in pursuit of his assailants. The officers testified to having pursued appellant and his companions and capturing them. They found in the possession of appellant some of the property that had been taken from Rankin.

Appellant did not testify in his own behalf. He introduced one witness who gave testimony tending to show that he (appellant) did not commit the offense.

The indictment did not charge that a pistol was exhibited. Bill of exception No. 1 presents the following occurrence: There were forty-eight prospective jurors upon the panel for the week. The name of each prospective juror was on a card. The court instructed the clerk to draw a list of thirty-six jurors and to send twelve jurors to the One Hundred Twenty-Sixth District Court for service there. Appellant objected to this procedure on the ground that he was entitled to have the names of the forty-eight jurors drawn. Under the instruction of the court, the clerk took all of the cards containing the names of the forty-eight jurors and shuffled them. From these he counted out thirty-six cards. These thirty-six cards, carrying the names of that number of jurors, were then placed in a receptacle and drawn in accordance with the provisions of the statute. The twelve jurors who were not drawn were sent to the One Hundred Twenty-Sixth District Court. Prior to the time the jurors were sent to the court last mentioned appellant had announced ready for trial. The bill of exception is qualified with the statement that the One Hundred Twenty-Sixth District Court required a jury; that inasmuch as Travis County operated under the interchangeable jury law, one jury was drawn for the use of all the courts in the county for each week. It is inferable from the qualification that the jury drawn for all the courts for the week was in the Fifty Third District Court, where appellant was upon trial.

Appellant contends that under the holding of this court in Adams v. State, 99 S.W. 1015, and Bell v. State,243 S.W. 1095, he is entitled to a reversal of the judgment because of the failure of the trial court to have drawn the names of the forty-eight jurors who were in his court at the time of the announcement of ready. In the Adams Case the jury were drawn in the absence of the accused and prior to his announcement of ready for trial. After announcing ready for trial, he requested that the jury be again drawn in his presence. This request was refused. It was held that the accused had a right to be present when his jury was drawn in order to see that the list was drawn by the proper person and in accordance with law. In Bell v. State, supra, in a county operating under the interchangeable jury law, the court declined to have the jury drawn in compliance with articles 626-628, C. C. P. Thus it is seen that in the cases relied upon by appellant there was a plain violation of the mandatory provisions of the statute. From the case of Armstrong v. State,18 S.W.2d 622, the following is taken: "From bill of exceptions No. 1 we learn that appellant moved the court to have the clerk place the cards of all jurors available in some receptacle and have drawn therefrom a sufficient number of cards containing the names of jurors from which to select a jury herein. This was refused by the trial court, who, however, Dallas County operating under the interchangeable jury law, instructed the bailiff of his court to direct the bailiff having charge of the general jury for the week to send to the courtroom of the trial judge men for a jury in this case, and that some 40 or 50 men were so sent. The names of these men, under instruction of the court, were written upon cards and placed in a hat from which, after being well shaken, they were drawn out and as drawn were placed on jury lists, which were delivered to the respective attorneys for the State and defense in this case. This we think in substantial compliance with articles 626-628, Code Cr. Proc., 1925. We are of opinion that it would not affect the legality of the action of the trial court in this case, but observe that there is no showing of the fact that all available jurors were not sent to the courtroom of the trial judge in response to his request."

We think Armstrong's Case is authority for our holding in the present case that there was substantial compliance with the statute requiring the jury be drawn. See also Wright v. State,36 S.W.2d 511.

A careful examination of all of appellant's contentions leads us to the conclusion that reversible error is not presented.

The judgment is affirmed.

Affirmed.

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