Perry Cavitt v. The State, 15 Tex. Ct. App. 190

Willson Judge. 1. There was no error in overruling the defendant’s motion to quash the special venire. The grounds of said motion were, first, that the jurors were selected solely from persons known to be not defendant’s equals, but his superiors; second, that in the selection of said jurors the persons or officials selecting did unjustly discriminate against persons of defendant’s race and kind, by refusing to select such persons as jurors. Bearing upon this motion the following facts are shown by the record.

First, defendant is a negro, and was charged, and has been convicted of the murder of a white man; second, the jurors by whom he was tried were white men, selected from a special venire, and the special venire was drawn in accordance with law from the petit jurors selected at the last preceding term of the court, by commissioners appointed for .that purpose, as provided by law, and in strict compliance therewith; third, the jurors so selected by the commissioners were selected before the occurrence of the alleged murder of which defendant was convicted, and could not therefore have been selected with reference to his case.

In selecting jurors, the jury commissioners are required to select, from the citizens of the different portions of the county, persons liable to service as jurors, who are free from all legal exceptions, of good moral character, of sound judgment, well informed, and, so far as practicable, able to read and write. (Rev. Stat., Art. 3030.) From the persons selected the commissioners are required to draw, by chance, the names of the persons who are to serve as jurors at the succeeding term of the court. (Rev.

Stat., Art. 3031.) It is nowhere required, in tlie law, that the commissioners shall consider the question of race or color in their selection of jurors, nor does the law anywhere prohibit them from doing so. Upon this subject the law is wisely silent. There is no provision in the law which vests in the court, or in any other tribunal, the power to revise and control the selection of jurors by the commissioners. We do not say, however, that this power does not inherently exist in the court.

We think it does, but it would be exercised only in a clear case of fraud or corruption in the action of the commissioners, or some great wrong committed in their selection of jurors, which would shock the sense of justice and defeat the ends of law. (State v. Smith, 33 La., Ann. 1414; State v.

Bradley, 48 Conn., 535.) If the objection which is made to the jurors in this case had been presented in the form of a challenge to the array, it could not for a moment be entertained, because our statute expressly provides that the defendant may challenge the array only in case the officer summoning the jury has acted corruptly, and has wilfully summoned, persons upon the jury known to be prejudiced against the defendant, and with a view to cause him to bo convicted. (Code Crim. Proc., Art. 624.) But even this challenge is not allowed when the jurors have been selected by jury commissioners.

In such case no challenge to the array is allowed. (Code Crim. Proc., Art. G25.) But the objection made to the jury here reaches back to the selection of the jury by the commissioners, and does not impugn the fairness of the officer summoning the jury. Such being the case, wé think the learned trial judge very properly entertained the motion, and heard evidence upon it, and, for aught that we can perceive in the record, very correctly overruled it.

It was' not shown that the commissioners, in selecting jurors, had practiced any fraud, or had acted corruptly, or that any error whatever had been committed by them, or by any one else in. the premises. That the commissioners had not selected any negroes to serve as jurors would of itself be no valid objection to their action. A very large discretion is confided in the commissioners by the law. In the ex rcise of that discretion, within the limits of the law, their action, as before stated, cannot be questioned, except in an extreme case of fraud, corruption or gross error. 2.

It is argued by counsel for defendant that

Article 625 of the Code of Criminal Procedure, which prohibits a challenge to the array of jurors for any cause, where the jury has been selected by the jury commissioners, is in violation of the Fourteenth Amendment to the Constitution of the United States, which declares that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” We are not able to perceive wherein this provision of our Code, or any other provision relating to crime or criminal trials, to any extent or ip. any manner, violates the constitutional provision above quoted.

Our laws make no distinction between colors, races, nationalities, or conditions of individuals, but regard all as equal and entitled to equal protection; and we believe we speak but the truth in asserting that in no State in the United States is justice more evenly meted out, and the laws more impartially administered to the citizens, without regard to whether they be white or black, rich or poor, influential or obscure, than in our own State of Texas. But the precise qiiestion here presented by counsel has been considered and settled against his position by the Supreme Court of this State, in Williams v.

The State, 44 Texas, 34, wherein the court say: “A defendant is not denied equal rights with other citizens when he is required to observe a uniform rule of procedure, general to all others, in the administration of the criminal laws of the State.” And this principle is also maintained by the Supreme Court of the United States, in the case of Virginia v. Rives, 100 U. S. Reps., 313. (See also Nashville v. Shepherd, 3 Baxt., Tenn., 373.) 3.

It appears from a bill of exception in the record that, in testing the qualifications of jurors, the defendant proposed to propound to each person offered as a juror the following question, viz: “Have you the same neighborly regard for this defendant, though a negro, and his race generally, as you have for individuals of the .white race?” Objection being made to this question by the district attorney, the court would not allow it to be propounded, but each juror was asked the statutory questions, and, in addition thereto, the defendant was permitted to ask each juror “if he could and would give to the defendant the same fair and impartial trial under the law and the evidence that he would give to a white man under the same circumstances, and would try the case without regard to the question of color.” It is true that proper questions to test the bias in favor of, or the prejudice against a defendant, should be allowed in examining as to the fitness of a person offered as a juror to serve as such.

But a question, to be proper, should be directed to the issue as to whether or not the person proposed as a juror is impartial, and in a condition of mind and feeling to try the case fairly. We cannot perceive that the question proposed by the defendant would be a proper one.

If answered by the person to whom propounded in the negative, it certainly would not disqualify him as a juror, nor would it show that he was prejudiced against the defendant, or the defendant’s race, nor that such person would be likely to be influenced in his verdict because he did not have the same “ neighborly regard” for a negro that he had for a white man.

If this were held to be sufficient cause to disqualify a person from serving as a juror, then all juries would have to be selected with reference to the race, nationality or class to which the defendant belonged; for, as a general rule, no white man has the same neighborly or social regard for a negro that he has for a white man, and the casé is the same with the negro. So with the Mexican, the Irishman, the German; they have a greater neighborly regard for their own countrymen than for an American, and the American has a stronger neighborly regard for one of his own country than for a foreigner.

This same objection as to neighborly regard would apply to classes as well as to races or nationalities; to farmers, merchants, mechanics, doctors, lawyers, etc. An individual generally has a stronger neighborly regard for one of his own class than for one of a different class. We think the court was correct in refusing to permit the proposed question to be propounded. (Lester v. The State, 2 Texas Ct.

App., 432.) But, even if the question was improperly rejected, the rejection of it was a matter within the discretion of the trial judge, the exercise of which discretion would not be revised by this court unless it was made clearly to appear to us that the same had been abused to the prejudice of the accused; and in this case it does not so appear. (Ray v. The State, 4 Texas Ct. App., 450; Gardenhire v. The State, 6 Texas Ct. App., 147.) 4. There is no bill of exceptions in the record which calls in question the rulings of the court upon the admission or rejection of evidence.

It is too late to object to evidence, or to complain of the rulings of the trial court in relation to it, for the first time in this court. Such objections must be made upon the trial in the court below, and, if not there made, are to be considered on appeal as waived. (Waite v. The State, 13 Texas Ct. App., 169; Etheridge v. The State, 8 Texas Ct. App., 169.) 5. Ho complaint is made, nor could any reasonably be made, by the defendant against the charge 'of the court. It was more favorable to the defendant in several respects than the testimony demanded.

We must commend the learned trial judge for according to the defendant, as should always be done, especially in cases of such magnitude as this one, all, and even more, rights in the trial of the case than he was strictly entitled to under the law and the evidence. It has never been our duty to examine a case which had been tried with more care, and which evinced on the part of the trial court a more scrupulous regard for the rights of the accused, than this one. , After a careful examination of the record, we cannot hesitate to- say that the defendant has been fairly and impartially tried; and justly convicted.

It is conclusively shown by the evidence that he committed a deliberate, cruel and dastardly murder, and it is lawful and right that for this crime his life should be forfeited. Opinion delivered December 1, 1883.

Reporter’s Note.—After the affirmance of the judgment as directed by the foregoing opinion, the appellant’s counsel filed a “ petition for allowance of appeal to the Supreme Court of the United States upon writ of error,” and, in the event of a disallowance, for an order of court directing its clerk to furnish to the appellant a copy of the record in this cause, so as to enable the appellant to prosecute his appeal to the Supreme Court of the United States. The substance of the petition was, that the law of Texas regulating the selection and organization of juries is in contravention of the first

section of the Fourteenth Amendment to the Constitution of the United States. The specific grounds relied upon are distinctly indicated in the rulings of the court upon the merits of the case. Upon this petition the court made the following order: ’’PERRY CAVITT ) vs. j-In the Court of Appeals. ££ THE STATE OF TEXAS.

J “An inspection of the record will show that the matters complained of are not tenable; because it is shown that the jury commissioners, whose acts are the subject matter of complaint, were selected, and their action was had, before appellant had even committed the crime charged against him; and it is not perceived how the constitutional question sought to be raised can be invoked in the premises. The petition for writ of error is, therefore, refused.

Should petitioner, however, desire a copy of the record on file in this court, with a view of applying to some judge of the Supreme Court of the United States for a writ of error, the clerk of this court will furnish said copy when applied for, and he is hereby ordered to do so.” Ordered accordingly. The judgment is affirmed. Affirmed.