Cockrell v. State , 135 Tex. Crim. 218 ( 1938 )

Appellant was indicted at a (first) special term of the district court of Burnet County, which convened on July 12, 1937. He was tried at a (second) special term of said court which convened on July 26, 1937, after the first special term had closed. No question is raised respecting the validity of the call for or holding of either of said special terms. For the first time in the motion for rehearing appellant attempts to raise a question as to the regularity of selecting the grand jury which returned the indictment at the first special term and of the petit jurors or venire from which the jury was selected which tried appellant at the second special term. On the first day of the first special term the trial judge selected and impaneled a jury commission which selected the grand jury which returned the indictment. At the same time the trial judge called the second special term to convene on July 26th, and directed the same jury commission to select petit jurors or venire for said second term.

There is no merit in the criticism of the manner of selecting and organizing the grand jury which returned the indictment. It appears to be in strict conformity with Article 1920, R. C. S.

We find it unnecessary to discuss the question attempted to be raised regarding the selection of the petit jurors or veniremen for the second special term. No such point was made in the trial court during the selection of the jury which tried appellant. No mention was made of such matter in the motion for new trial. The point was not even raised in the original submission of the case in this Court, and in the motion for rehearing for the first time complaint is heard regarding such matter. Even if perchance there might be any merit in the complaint it comes too late. Article 11, C. C. P., provides: "The defendant in a criminal prosecution for any offense may waive any right secured him by law except the right of a trial by a jury in a felony case when he enters a plea of not guilty." Acts 42d Legislature, page 65, Chap. 43. We quote from McMahon v. State, 17 Texas Crim. App. 321, in which Judge WHITE said the defendant "can waive every right except the right of trial by jury. * * * An acceptance of the jury by the accused is a waiver of the right to question its organization on motion for new trial or in arrest of judgment." In Hernandez v. State, 47 Tex.Crim. Rep., 81 S.W. 1210, it was said: "Questions in regard to the manner of selecting and impaneling jurors must be excepted to at the time of the action taken. It is too late to suggest it by motion for new trial except under certain contingencies, wherein the statute provides that certain class of jurors are incompetent under all circumstances."

Such has been the consistent holding of this Court. See Branch's Ann. Texas P. C., p. 271, Section 524; 4 Tex. Jur., p. 53, Section 34; Tinsley v. State, 52 Tex.Crim. Rep.,106 S.W. 347; Kinch v. State, 70 Tex.Crim. Rep.,156 S.W. 649; Lowe v. State, 88 Tex.Crim. Rep., 226 S.W. 674; Campbell v. State, 122 Tex.Crim. Rep., 56 S.W.2d 460; Cardena v. State, 94 Tex.Crim. Rep., 251 S.W. 225; Ellington v. State, 63 Tex.Crim. Rep., 140 S.W. 1101.

On motion for rehearing appellant again urges that the evidence does not support the jury's finding of a killing upon malice. This necessarily brings in review all of the testimony in the case. We have again carefully examined the statement of facts. The evidence was analyzed and set out in our original opinion and a restatement of the same would serve no useful purpose. The trial court in every way possible made it clear to the jury that in no event could they convict appellant under the first count of the indictment in the absence of malice. The facts in cases like this are always troublesome, but we are not allowed to substitute our judgment for that of the jury, and should not disturb the verdict unless no facts are found to support it. We think there is evidence from which the jury might have concluded that appellant handled his car in such manner as evinced such reckless disregard of the lives of others as would support the inference of malice.

Entertaining such conviction, we feel impelled to overrule the motion for rehearing.