Pocket v. State

White, J. In this case, the appeal is from a judgment of conviction for murder in the first degree. Appellant was charged in the indictment with having, on February 14, 1878, murdered one Leonard Hyde, in Lavaca County. He was arraigned and tried on February 11,1879. Counsel was assigned him by the court, and, as shown by the record, conducted his defence with marked ability on the trial below, whilst in this court they have also appeared by printed briefs in his behalf, distinguished alike in force of argument and commendable zeal for a gratuitous and unfortunate client. Many questions are raised as to the correctness of the proceedings on the trial, all or most of which are reca — 563 — pitulated in the fifteen different grounds enumerated in the assignment of errors. We do not propose to discuss them seriatim or in whole, but only such as in our judgment are most pertinent and important, or novel in character. 1. Two preliminary questions are made with reference to the special venire, which were submitted in a motion to quash, which, technically speaking, was a challenge to the array. First, that neither defendant nor his counsel was notified or present in court when the venire was drawn ; and, secondly, that the special venire was not drawn in conformity with the requirements of the statute. Two reasons are assigned for this latter objection, viz.: that the box from which the names of the jurymen were drawn was not such an one as the law provides shall be used for such purposes ; and that the names were not drawn from the box by the clerk, upon whom alone the law imposes that duty. With regard to the first proposition, we are aware of no provision of statute or rule of practice which confers upon a defendant or his counsel in a capital case the right to be present at the drawing of the special venire. True, in some of the States—as, for instance, in Alabama—the court, while not expressly deciding that it was necessary, have held that the personal presence of the prisoner at such time would be the safer practice. Henry v. The State, 33 Ala. 389 ; Hall v. The State, 40 Ala. 698, and authorities cited. We are not disposed, even if necessary, to controvert the proposition that the practice would be “ a safer one; ” as, indeed, would be the personal presence of the prisoner whenever any step is taken in his case. What we hold is, that such right is nowhere conferred by statute; and,in our opinion, under the provisions of the present grand-jury law with regard to special vinires, it cannot well be perceived how his presence or absence could affect any apparent right of his in any appreciable manner. Acts Fifteenth Legislature, 82, sec. 23. — 564 — Under the old law,“ the" challenge to the array ” was allowed in and limited to cases where the officer had acted corruptly in summoning the jury. Pasc. Dig., art. 3034. That was at a time when the whole selection of the venire was confided, in a great measure, solely to the officer executing the writ. Now such chances for corruption under the present system must be rare indeed, and confined almost exclusively to cases where talesmen are summoned to supply deficiencies. The authorities cited by counsel, upon this proposition, are not analogous. Our statute provides the method by which a defendant is notified of the names of persons summoned on a special venire. Pasc. Dig., art. 3022. With regard to the second proposition, the facts were that the box from which the names of the jurymen were drawn was an ordinary cigar-box, with a lid on the side, but not a sliding lid ; and the names of the jurors were drawn from this box by one Green, who was a deputy-sheriff, in the presence of the judge, in open court, whilst the clerk simply recorded the names so drawn. The section of the statute upon which the first point is predicated is section 21 of the jury-law, and reads: “The clerk shall write the names of all the jurors entered of record, on separate slips of paper, as near the same size and appearance as may be; and when a jury is wanted for the trial of any case, the same shall be drawn from a box, after the slips of paper above mentioned shall have been deposited therein and mixed. The clerk shall provide and keep for that purpose a suitable box, with a sliding lid.” Acts Fifteenth Legislature 82. This box, we take it, was intended more especially for ordinary use when the names of jurors on the weekly panels were to be drawn. Sec. 20. In section 22, providing for ordinary jury trials, the language is, “the clerk shall draw from the box.” In section 23, providing for special venires,. the language is, “ and the tickets be placed in a box, which shall be well shaken up, and from this box the clerk, in the — 565 — presence of the judge, in open court, shall draw the number of names required for said special venire,” etc. This language, it would seem, indicates clearly that the box to be used on occasions of special venires may be another and different box from the one with a sliding lid provided for ordinary juries. If so, then the structure or make of this latter box is not prescribed, and an ordinary cigar-box, with any kind of a lid, might answer the purpose. Where no injury is shown to have been done, and not much probability that an injury under the circumstances could have been done, this court will avail itself of strictly technical reasons to support and sustain the action of the court below against mere technical objections. Johnson v. The State, 4 Texas Ct. App. 269 ; The People v. Brotherton, 47 Cal. 388. The other objection, that the clerk did not actually in person, with his own hand, draw from the box the names of the jurors, as shown by the facts, is of the same character, and purely technical. In Hasselmeyer's Case, 1 Texas Ct. App. 690, the question, though raised, was not decided, because not taken advantage of at the proper time. That was the first instance, so far as we remember, in which the point was made. In several of the other States, under statutes of similar character to ours, analogous qúestions have been adjudicated. In Carpenter v. The People, 64 N. Y. 483, it was held that “ a challenge to the array of petit jurors at a Court of ' General Sessions for the city and county of New York alleged that the jurors were not selected by the commissioner of jurors of said county, and that neither he nor any one on his behalf attended the drawing; but that the jurors were selected by one appointed by the mayor as commissioner, and that the statute under which the mayor acted was unconstitutional. Held, that the challenge showed upon its face that the jury were selected by an officer de facto, whose acts, in the exercise of the functions of the office, were valid as to the public, and whose appointment could — 566 — not be questioned collaterally; and that, therefore, a demurrer to the challenge was properly sustained.” In Hunt v. Mayo, 27 La. An. 197: “ Under the act of 1868, Revised Statutes, 2127, the requirement was that the jury must be drawn b)r the parish judge, clerk, and sheriff. The drawing for the term was made by the parish judge, clerk, recorder, and the sheriff. Therefore, all the officers required by law to.draw the panel were present, and officiated in the act. The placing in the order of the judge, for the drawing at that term, the additional officer — the recorder — was doubtless an oversight, and may be regarded" as surplusage. Held, the objection to the drawing has no weight.” In Mapes v. The People, 69 I11. 523, it was held: “When the office of county clerk was divided in a county, the fact that a person acting as county clerk for mere county matters assisted in the drawing of a jury, instead of the clerk who attended to the business of the court in probate and other matters, was regarded as no ground for a challenge to the array, he being de facto a county clerk, and the objection was considered trivial.” In the opinion the court further say, in this latter case: “We are not inclined to regard with favor mere trivial objections, interposed for no other purpose than to obstruct the administration of the law.” So, in the case under consideration, the object, spirit, and intention of the law — which is, to secure a fair and impartial jury—was not, so far as we can see, violated. The drawing was done in open court, in the presence of the judge, from a box with a lid upon it, and the names were recorded as drawn, by the clerk. How the defendant could possibly have been injured in any manner by the fact that the deputy-sheriff drew the names from the box cannot be perceived. Ray v. The State, 4 Texas. Ct. App. 454. 2. Another objection assigned as error is, that the court improperly admitted in evidence the confessions of the defendant. ■ Shortly after the murder, defendant said to — 567 — the witness Lemons, holding his pistol in his hand, “ Do you see this? I have just killed one man with it [the pistol], and if you listen you will'hear it kill another.” This confession was made freely, without compulsion or persuasion, and was entirely competent, both as a confession and as evidence of the animus with which the act was done. Pasc. Dig., art. 3126. “Acts and admissions, or other language of the prisoner, even after the mortal stroke or killing, may often be pertinent evidence tending to show express malice at the time of the killing.” The Commonwealth v. Jones, 1 Leigh, 670; McCoy v. The State, 25 Texas, 33. Again, when the defendant was arrested, in Bosque County, by Hays, a constable of that county, that officer, who was a witness, testified that “ defendant said, ‘ Yes, I killed that fellow Hyde, and I reckon they will stretch my neck for it when I get down in Lavaca County.’ Before he made this statement, I warned him that whatever statement he might make about this matter could be used in evidence against him.” Under the provisions of our statute with respect to confessions made after arrest, this testimony was perfectly legitimate. Pasc. Dig., art. 3127. 3. The charge of the court, whilst not as elaborate as, perhaps, it might have been, embraced the law applicable to the facts proven. Some of the number of special charges asked by defendant’s counsel might with propriety have been given; but we cannot say that they were essential, or tended to present the law as applicable to the facts directly connected with the homicide more correctly than as it was set forth in the .general charge. A district judge, it is true, is not bound to repeat charges already substantially given, or to charge upon a state of facts which, in his opinion, do not exist; but it is a safe rule that, whenever a reasonable doubt might arise as to the applicability of the instructions asked to the facts adduced on trial, the court should rather — 568 — give the instruction, if a proper one, than have the case subjected to the risk of a reversal for the want of such' a charge. And oftentimes a failure to do so necessitates, uselessly, a discussion of questions which the district judge should not have permitted the record to become encumbered with. All the evidence sought with regard to defendant’s intoxication was permitted to be introduced by him, to prove the mental status, and the court did charge the jury fully upon murder in the second degree. Colbath v. The State, 4 Texas Ct. App. 76. We are of opinion that the charge was a sufficient presentation of the law applicable to the case. All the witnesses who testified to the acts, appearances, conduct, and conversation of the defendant at the time of and just immediately preceding the killing, stated that, in their opinion, defendant was sober; or, rather, that he exhibited no indications of intoxication. This disposes of all the material questions complained of as error. With reference to the other errors assigned, we do not think them well taken, and therefore not necessary to be considered in this opinion. The facts exhibit a wanton, reckless, unprovoked taking, of human life, under circumstances which disclose a total want of motive, much less of justification or excuse. Why the defendant should have shot down the deceased as was done, —a young man going with him upon a hunt, in all the confidence of friendship,—‘Without a word of difference or controversy having taken place between them, is one of those unaccountable circumstances which sometimes occur to startle us with its enormity, and impress us with the fiendish malignity of a heart fatally bent upon mischief. His subsequent boastful declarations fully evince the character of the malice which actuated the foul deed. His flight is a circumstance exhibiting his own consciousness of his guilt. — 569 — And Ms statement to the officer who arrested him, — “ I killed that fellow Hyde, and I reckon they will stretch my neck for it when I get down in Lavaca County,”— was not only confession of guilt, but also a just condemnation of" himself to the gallows for his crime. We have been unable to see a single material error in this record for which we would be warranted in interfering with the verdict and judgment rendered in the court below,, and the judgment is therefore affirmed. Affirmed.