Sinclair v. State , 35 Tex. Crim. 130 ( 1895 )

Appellant was given twenty-five years in the penitentiary for murder in the second degree, and prosecutes this appeal. When the special venire was called, Davidson and Bishop, two of the jurors thereon summoned, failed to answer to their names. While empaneling the jury, the name of Davidson was called; and, he being absent, the court, over appellant's objection, ordered the name of the next juror called. The court inquired if appellant desired an attachment for the juror, and his counsel replied: "I stand upon my rights." The call of the jury then proceeded until Bishop's name was reached, whereupon the same proceedings were had as in the case of the juror Davidson. The venire was exhausted, and the jury being incomplete, the court ordered the sheriff to summon talesmen. The appellant then informed the court that he still desired to pass upon the two absent veniremen. The court suspended proceedings, issued attachments, and had the jurors brought into court. Upon the examination of the jurors, Davidson was challenged by the State, and Bishop disqualified himself and was excused. These matters are urged for reversal. Where a juror has been summoned on a special venire, and fails to appear and answer to his name, either party may call for and have an attachment issued to enforce his attendance at once. Code Crim. Proc., Art. 618. If this is not demanded at the time, the parties are deemed to have waived their right to the attachment. Hudson v. State, 28 Tex.Crim. App. 323. The statute provides that if the summoned juror fails to answer to his name, if he appear before the jury has been completed, he may still be tried as to his qualifications, and empaneled as a juror, unless he is challenged, but the cause shall not be unreasonably delayed on account of the absence of such juror. Code Crim. Proc., Art. 640; Cahn v. State, 27 Tex.Crim. App., 709; Hudson v. State, 28 Tex.Crim. App., 323; Wilson's Crim. Stats. § 2287. We cannot see how any of the defendant's rights were or could have been injured in this matter. By bill of exceptions, it is shown that State's counsel commented upon matters of fact not adduced on the trial. It is shown, however, by the court's qualification of the bill, that the remarks of the District Attorney were strictly in reply to the argument and statements of appellant's attorney in the same connection and in regard to the same matter. When a defendant's counsel provokes improper remarks to be made by counsel for the State, the defendant will not be heard to complain of such remarks. Baker v. State, 4 Tex.Crim. App., 223; Williams v. State, 24 Tex.Crim. App., 33; House v. State, 19 Tex.Crim. App., 227; Mayes v. State, 33 Tex.Crim. Rep.; Norris v. State, 32 Tex.Crim. Rep.. The issue of self-defense is not suggested by any evidence in the case. If appellant killed the girl and boy burned in the house, he did so with an ax, and burned the house in which the bodies were in order to destroy evidence of the crime. The only evidence showing any trouble between the girl and appellant was a remark made by him to the girl during the morning preceding the murder and burning, iu which he stated to her that "she had hurt his nose." This does not suggest the theory of self-defense. The judgment is affirmed.

Affirmed.