De Shazo v. State

DATTIMORE, J. Appellant was convicted in the district court of Nacogdoches county of possessing intoxicating liquor for purposes of sale, and his punishment fixed at one year in the penitentiary. ’The state introduced two witnesses; one of whom testified that in July he and a party found in appellant’s yard and garden and around the premises three kegs of whis-ky, containing in all approximately 12 gallons. The kegs were secreted at various places. They also found in a shed which was boxed up and covered several barrels of mash capable of being converted into whisky. The other witness testified that some months before the finding of the liquor, mash, etc., above referred to, he, with another party, went to appellant’s house, .and both of them purchased intoxicating liquor; witness buying 5 Quarts from appellant, for which he paid him $12.50. Appellant complains of the reception of the testimony of the last-mentioned witness. It was competent for the state to prove sales of intoxicating liquor by appellant at times sufficiently near to shed light on the purpose of the instant possession of the quantity of liquor had by appellant. One of the elements of the offense charged was the purpose of sale, and^ as affecting this question it was proper for the state to prove sales reasonably near the time of the alleged possession. Wé think the evidence admissible. There are other bills of exception which have been examined by us, and in none of which do we find any error, nor are the questions such as that a discussion of them would be of any value. In his motion for new trial appellant set up the fact that he discovered after the trial that'one of the jurors who sat in this case had. served in a former trial of the same case the preceding year. Said juror;- with others, were witnesses on the hearing of the motion. None of. them testified to any reference made, during the consideration of the case, by juror Ballard to the former trial, or any of the facts therein testified to or its result. Mr. Ballard testified that he served on the jury a week during the preceding year, and that seven criminal cases were tried, in five of which he sat on the jury; that all the the parties were strangers to him; and that he did not charge his memory with any of them, and had now no recollection of the facts or who the witnesses or parties were in any of them. He said that as far as Mr. De Shazo was concerned he had no recollection of ever having seen him. Questioned as to what he said on his voir dire in this trial, he replied that he answered as did the other jurors; that he had no opinion in this case : and that, as far as he knew, this was the truth. He further stated that hearing the witnesses did not recall the former trial, and that, after the jury retired, he was for acquittal, and was one of the last men to agree to a conviction, and only did so agree in case the other jurors would come to the lowest penalty, which was that finally stated in the verdict. Article 692 of Vernon’s Ann. Code Or. Proc. 1916, sets out in particular the grounds .of challenge for cause to a juror, one of which is that he served on a petit jury in a former trial of the same case. Article 695 of said Code Or. Proc., sets forth that the grounds of cause for challenge in third, fourth or fifth clause as set out in preceding articles, cannot be waived. Former service in the same case is not either the third, iourth, or fifth ground in article 692, supra. Without intimating that it is true of this case, suppose the attorneys for the accused at his former trial should learn that one of the jurors who sat in said former trial had had a change of heart, and, upon his being offered as a talesman in a succeeding trial, should conclude that they would take him and say nothing about his former service. We do not think it would be contended but that they might do this if they desired. We would hardly think it likely in any case that the attorneys for a man charged with crime would want to challenge a juror in advance if they knew he was for acquittal. The rec *563 ord in this case shows that part, if not all, of the same attorneys who represented appellant on this trial were defending him on the for= mer trial. Appellant himself testified that he did not remember Mr. Ballard as one of his former jurors. The record does not show any question to the juror on his voir dire as to his former service. The clerk’s office contained a list of jurors who served on the former trial. Appellant’s attorneys not having asked any question of the juror, and nothing appearing in the record to indicate any fraudulent purpose on. the part of said juror, or any injury to appellant, we hold that the objection, if any, was waived. No error appearing in the record, the judgment will be affirmed.