Thuston v. State

Citations

• 18 Tex. Ct. App. 26
• 1885 Tex. Crim. App. LEXIS 58

Syllabus

<p>1. Jury Law — Special Venire — Practice.—In the selection of jurors from a special venire it was ascertained that all the veniremen were in court, but that five of them were jurors in another felony case. As the names of these five were called, the defense demanded their production in the jury box, to be passed upon. For the reason that the selection of any one of the five would break up the jury in the other case, the court overruled the demand, and, over objection by the defense, ordered the sheriff to summon twenty talesmen, and required the defense to proceed with the selection from them of jurors to complete the panel. Defendant’s peremptory chailenges were exhausted before the panel was filled. In explanation the trial judge states that he was not asked to delay this case until the jury in the other case should return a verdict, and that the jury in the present case was completed and sworn before the jury in the other case did return their verdict. Held, that the rulings of the trial court were erroneous. The case which the five veniremen were already trying being a felony case, the court should have postponed the impaneling of the jury in the present case until the said five veniremen were legally discharged from further consideration of the other case. No right of the defendant was forfeited or waived by his failure to ask the postponement, and the court was not authorized to deprive him by its own action of his right to have the special veniremen subjected to challenge or acceptance seriatim as their names were called from the list. Note in the opinion the collocation of statutory provisions and judicial decisions bearing upon the questions discussed.</p> <p>2. Confessions — Charge of the Court.—Though true as a general rule that the confessions of a defendant should be received with caution, an instruction to the jury to that effect would be a charge on the weight of evidence, in contravention of article 677 of the Code of Criminal Procedure, which proh