
    McCLINE v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1911.
    Rehearing Denied Jan. 3, 1912.)
    1. Homicide (§ 253) — Murder in First Degree — Evidence—Sufficiency.
    Evidence held to sustain a conviction of murder in the first degree.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 253.]
    2. Indictment and Information (§ 140)— Motion to Quash — Proof Required.
    Motions to quash the indictment because accused was a negro, and negroes were improperly excluded from the grand and the petit juries, were properly overruled, where there was no evidence that he was a negro.
    [Ed. Note. — For other cases, see Indictment and Information, Dec. Dig. § 140.]
    3. Indictment and Information (§ 139)— Motion to Quash — Time for Filing.
    Under Code Cr. Proe. 1895, art. 397, authorizing challenge to an array of grand jurors before the jury is impaneled, a motion to quash an indictment because accused was a negro, and negroes were improperly excluded from the grand jury, came too late, where accused was in custody when the jury was impaneled.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 473; Dec. Dig. § 139.]
    4. Criminal Law (§ 1173) — Appeal—Harmless Error — Instructions.
    It was not reversible error to refuse to instruct that counsel for the state should not apply epithets to accused, and should not have called him a brute or a fiendish criminal, and that the jury should not consider such argument where the trial judge did not hear the argument, having been engaged in preparing instructions, and where the prosecuting attorney denied having made the remarks attributed to him.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1173.]
    5. Homicide (§ 295) — Murder—Evidence-Sufficiency.
    In a murder trial, evidence held insufficient to raise an issue whether accused acted while in a heat of passion caused by decedent’s refusal to marry him.
    [Ed. Note. — For other cases, see Homicide, Dee. Dig. § 295.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    Dan MeCline was convicted of murder in the first degree, and he appeals.
    Affirmed.
    Nat Llewellyn, for appellant. Frank 01-torf, Co. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

On January 14, 1911, the grand jury of Falls county, Tex., indicted the appellant for the murder of Rosa Tubbs, alleged to have been committed on September 6, 1910. The term of court at which the indictment was returned convened on January 9, 1911. The law requires, and we assume that it was done at this time, that the grand jury be duly impaneled on the first day of the term of court. From the record we gather that perhaps, on the same day of the killing, if not, only a day or two later, the appellant was arrested by the sheriff of Falls county, and placed in the jail of that county and kept confined therein until his trial, which occurred on February 7, 1911. On his trial he was convicted of murder in the first degree, a.nd the death penalty inflicted.

The evidence, without contradiction, shows: That the deceased was an unmarried woman about 25 years old. That she had four illegitimate children; the last one being born in the summer of 1910. The exact time does not appear. For some time prior to the killing, she and her three children lived with her married sister. The appellant also lived with this sister. There were four rooms to the house. One was a kitchen, the other three bedrooms. The appellant stayed in one of these bedrooms, the deceased and her children in another, and her sister and brother-in-law in the other. The deceased went to this sister’s house some time in about January, 1910, and continuously lived therein until after the birth of her last child in the summer of 1910. The sister and brother-in-law denied that appellant “kept” her while there. One of the witnesses testified that the deceased claimed that one Jones — not the appellant — was the father of the illegitimate child which was born while she was living at her sister’s in the summer of 1910. No one testified, and the record does not disclose, that appellant was the father of that child. The appellant is shown to have been very anxious to marry the deceased, and that while she stayed at her sister’s she agreed to marry him as soon as she recovered after the birth of that last child. That while she was there the appellant looked after her and supported her. As soon as she recovered from the birth of the child, she refused to marry the appellant, and removed from her sister’s, where she gave birth to the child, and where she had been staying, some miles distant; the exact distance not disclosed. The appellant claimed that she- owed him about $50 for what he expended for her while she was at her sister’s awaiting the birth of her child. She disputed this, claiming that she owed him only $4.50.

The deceased left her sister’s, where she and appellant had been staying, on Friday before the killing on the following Tuesday about noon. On Monday appellant told deceased’s sister, where he was staying, in the presence of her husband and another sister of deceased, to go over to where the deceased was and tell her to come home, and if she did not come home he was going to kill her. This sister .on that day went to the deceased and delivered appellant’s message. On Monday night, the night of the samé day, appellant himself got in his wagon, went from where he was over to where deceased was, hunted her up, called her out of the house where she was, and, after each spoke to the other, he told her that she had not kept her promise to marry him. She replied: “I know I promised to marry you; but you told me my ways don’t suit you, so it is best for us not to marry.” He then asked her what she was going to do about what she owed him. She asked him how much she owed him, and he replied about $50, he reckoned. He then left her, bidding her good night, and stated that he would be back over there the next day. The next day he did go back over there with his wagon, armed with a six-shooter concealed about his person. He reached where she was some time in the morning of Tuesday, stayed around about where she and others were picking cotton, and talked to her and them. He remained about them for some hours, and .until the deceased and others started off to the house to get their dinners. The question again came up between them about her promise to marry him. She admitted that she had made such a promise, but that she was not going to marry him, and, after canvassing this matter between them, she definitely announced to him that she refused to marry him or go back to where he-was. The question also of what she owed him was again discussed, he claiming she-owed him about $50, and she 'claiming that she owed him only $4.'50; and at that time she made arrangements with her employer in appellant’s presence to pay him what she admitted she owed him. She then started off to the house with others to get her dinner. In going to the house it was necessary for the parties to go through a wire fence. When the deceased and others started off, appellant followéd her. After getting through the fence, only a short distance from where-they had been conferring, he said to her: “Didn’t you promise to marry me? Ain’t you going back up yonder with me?” She replied, “No, I ain’t going back up yonder any moré.” He said, “I am going to kill you,” and reached for his pistol. She threw up both hands and ran. He took after her, having some trouble in extricating his pistol, and did not do so until he ran her several steps. After he got his pistol out, he ran up to her, she running and screaming, put the pistol almost against her back, and shot her. 1-Ie was so close when he fired this shot that the flame from the pistol caught her clothing afire and it blazed up. Some of the witnesses, soon after she fell from the effect of this shot, had to take water and pour on her-clothes to extinguish the fire. When she fell, the appellant walked around to her head, which she raised up apparently to look at him. He thereupon put the pistol close to her head. or neck and fired again, striking her in the neck, and killed her instantly.

There were several eyewitnesses to the killing. There was no dispute as to the facts of the killing. There were also several eyewitnesses who heard the conversations between the appellant and the deceased that day, and also the preceding night when he went to see her. The appellant himself did not testify. After the killing he got in his wagon and went back to where he was staying at the deceased’s sister’s. Upon reaching the place, he met some persons to whom he told thfit he had killed the.deceased. The parties, not believing him, exclaimed to him: “Oh! You have not.” He replied: “Yes, I *have. I broke her neck. I am satisfied she is dead.” While he was telling this to one of the witnesses, another came up and heard it and said to him, “Yes, you have killed her.” He replied: “Well, here I am. I tried to phone for Mr. Toole (who was the sheriff of Falls county). I have killed her, and I am sorry I done it, hut I had it to do.” He further said that he was a good able-bodied man, and they could hang him if they wanted to, or he could work it out. He said: “X am going to turn myself over to the law.” That he “had promised himself that he would do it (kill the deceased) if he had to.”.

We think the evidence, without doubt, shows that the appellant murdered the deceased with malice aforethought; that he had deliberately planned to kill her if she refused to marry him; had so threatened and sent her word, and, after thus determining in his own mind while he was calm and long before the killing, he deliberately, willfully, and with malice aforethought executed his previously formed design and threat and killed her in a cruel manner.

On February 6, 1911, before the trial was had on the next day, the appellant made two motions, one to quash the indictment, alleging as grounds therefor that he (the appellant) was a negro, a person of African descent; that the jury commissioners appointed to select the grand jury, which found and presented the indictment against him, selected no person or persons of African descent known as negroes to serve on the grand jury, but, on the contrary, did exclude them therefrom; that the grand jury was composed exclusively of white persons, and while about one-fourth of the population and of the registered voters in Falls county were negroes or persons of African descent, and who were qualified to serve as such grand jurors, they were excluded therefrom on the ground of their race and color, and have been so excluded from serving on grand juries in said county for a great many years, which is a discrimination against the defendant; and that such discrimination is a denial to him of the equal protection of the laws and of his civil rights guaranteed by the Constitution of the United States. This is in full, substantially, the allegations of appellant in this motion. He also at the same time made a motion to quash the special venire summoned to try him in this particular case on substantially, if not literally, the same grounds as the other motion above stated to quash the indictment. In each of these motions he concludes them with this, “All of which the defendant is ready to verify,” and signs and swears to each motion before the clerk of the court.

The bill of exceptions to the action of the court in overruling both of these motions shows that in the bill he quoted each of his said motions, and that he introduced, and that the court heard, certain evidence on each of said motions, which was all of the evidence that he introduced or offered to introduce on the subject.

Under our law at each term of the district court the judge thereof is required to appoint three competent persons as jury commissioners, who are to select grand and petit jurors for the next term of such court. In selecting grand jurors, they are required (article 378, Oode of Criminal Procedure) to select no person who does not possess the following qualifications: “(1) He must be a citizen of the state and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county. * * * (2) 1-Ie must be a freeholder within the state or a householder within the county. (3) He must be of sound mind and of good moral character. (4) He must be able to read and write. (5) He must not have been convicted of any felony. (6) He must not be under indictment or other legal accusation of theft, or of any felony.”

None of our laws would require, authorize, or permit any discrimination whatever in favor of or against any race of people in the selection of either grand or petit jurors. It is unnecessary to quote our statutory provisions as to the duties of jury commissioners, or the qualification of either grand or petit jurors; but we state that in the selection of petit jurors to try cases, and in capital cases, as this was, substantially the same qualifications for petit as for grand jurors are required under our law to be selected.

The appellant in this case offered only one of the three jury commissioners to testify upon the hearing of his motions. This one witness, W. W. Turner, on the hearing of these motions, testified: “My name is W. W. Turner. I was on the jury commission that selected the present grand jury and petit jury. I do not know that we all selected any negroes on the grand jury. We took the list and went over it. I believe Mr. Poole furnished us the poll list. We had a poll list, and wherever we came to where one was marked colored, we did not put his name in the hat to be drawn. We were told that we were to select a certain number of names to put in the hat for the jury to be drawn from, so many names for each week for this term of court, and 150 special veniremen, I believe. We had the list, and, wherever we came across one that was marked colored, we did not put his name in the hat. We discussed the question as to whether we would put them on or not, and we thought, under the circumstances and conditions, possibly, that it would not be exactly right. You know juries have to be tied up together, and we did not care to mix them up. We intentionally left them off.” Cross-examination: “We were instructed to select good men. In selecting the grand' jury, we tried to get representative men from different parts of the county. I tried to select the ones on this side of the river, and they were to get the ones on the other side. In selecting those on this side of the river, the purpose in my mind was to select good men who would do their duty, regardless of anything else. My purpose was to select good law-abiding citizens. In selecting the grand jurors, we never looked at the poll list. We merely got to work. We selected the grand jurors, because we thought they were good, law-abiding citizens, and representative men in the community. We did not consider any man who was a good, law-abiding man, and refuse him because he was a negro. When we got the grand jury, I never thought anything about that. The only thing we considered in getting the grand jury was whether they were the right kind of men to compose a jury or not. It did not enter into my mind as to whether or not we would put a negro on the grand jury. There was no discretion about that. There was nothing said about the negro at all. In selecting the grand jury, there was no discrimination in my mind between the black and white race. We just wanted to get from different communities those men who would make good grand jurors. That was just the question in my mind. It was what I had in my mind, and I selected them. It was in my mind to select good men on both the grand jury and the petit juries. It might have been in my mind that the negro would not make as good a juror as a white man would. It was not because I wanted to discriminate against the negro. There was not any intention in the world in my mind to discriminate against the negro. It was our intention to get representative men who would make good jurors.” Redirect examination: “At the time we selected the grand jury, there were one or two men in Rosebud on it that I did not know; but since the grand jury was in session I have become acquainted with them. I knew the ones personally that were drawn by Mr. Kirkpatrick and myself. I knew there were no negroes drawn on the grand jury, because we discussed that beforehand. I do not remember whether we discussed that question before we drew the grand jury or not. I think we drew, the grand jury first. To the best of my recollection, the grand jury was drawn first; that is, we had drawn, I believe, 16 men. If I am not mistaken, we drew 16 names. We had this discussion before we reported them. Then, after the grand jury was drawn, Mr. Poole presented us with a poll list, and also the road overseer’s list. We tried to select men from different portions of the county. Wherever we came across a man’s name that had the letter ‘O’ following it, we did not put that name on the piece of paper and drop it in the hat tb draw from. In other words, we kept out all colored people intentionally.” Recross-examination: “I stated that we did not discuss this proposition until after the grand jury was selected. We did not discuss it with reference to the selection of the grand jurors.” Redirect examination: “I am not certain about that. It is not clear in my mind.” Upon being recalled by the state, he testified: “As I stated before, whenever we found a man’s name followed by the letter ‘C,’ we left his name off. If there was a negro drawn, it was because the party in making up the poll list had forgotten to put the letter ‘O’ after it. I believe I made the statement that we were trying to select men whom we thought to be good men. We did not think it would be advisable to have them mixed. I have been living in this county about 17 years. I do not know how many negroes there are in this county who are qualified jurors. There are about from 1,000 to 1,400 who usually pay their poll tax. I really do not know how many paid their poll tax last year. In looking over the poll list, we ran across them frequently. We thought possibly it would be unpleasant to both parties to mix them on the jury. The reason we did not draw them on the petit juries was that we thought possibly it would be unpleasant for the jurors, and not a bit because we had anything against the negroes. We were not trying to do the negro an injustice. We did not think of trying to deprive him of any rights at all. If we had thought of that, we might have drawn him a juror. A little over 4,500 poll taxes were paid in 1909. There were 4,781 poll taxes paid in this county last year, the year ending January 31, 1910. I do not know how many negroes paid their poll tax that year, but there were about 1,200 or 1,300. The year that 1,400 paid their poll taxes was two years following the local option election. The local option election was in 1904, I believe.”

Appellant introduced another witness, George H. Carter, who testified that he was county attorney of Falls county for four years, not stating when this was; that while he was such county attorney he was with each grand jury, and he had no recollection of a negro being on any of the grand juries while he was county attorney

He introduced another witness, Tom Con-nally, who testified that he was county attorney of Falls county for four years, not stating when this was; that while he was county, attorney there was no negro on any of the grand juries that he could recall. He thought there were some on the panel, but he did not thinlr any of them ever served as a grand juror. He was not positive, about any of them being on the panel, but thinks once or twice they were on the panel but not selected.

He introduced another witness, W. H. Barnhill, the tax assessor of Falls county, who testified that he expected there were approximately a thousand negroes who paid their poll tax last year (1910); that lots of them paid property tax, too; that there were a good many negro schools in the county; he did not know about how many; that some of these negroes could read and write; that the percentage of them who were landowners was small; that a lot of them owned their own homes; that there was a good percentage of them who were neither householders nor landowners. He would not pretend to say what percentage of the negroes in the county were able to read and write. He was sure that there were lots of them who paid their poll tax who were able to read and write for the reason that they signed their names to their renditions; that he thought he knew Edmund Brown; that he thought he was a negro; he knew of no other Edmund Brown in the county.

1-Ie also introduced C. W. Bratton, the tax collector of the county, who testified: That he did not know how many negroes paid their poll taxes for 1910. He had no idea and could not do anything but guess at it. He thought there were not as many who paid their taxes in 1910 as did in 1911. That it would take him three or four days or a week to go through his tax rolls to approximate the number of negroes who paid their poll tax in 1911.

He also introduced Mr. Eddins, the county superintendent of public schools in Falls county, who testified: That there were 48 negro schools in the whole county. That a few years before, when the law authorized negro trustees for these schools, they found trustees who could read and write. He did not know what percentage of the negroes in the county could read and write. That the average negro leaves school about the fourth grade, when they are 12 or 14 years of age. That there were more negro schools in the county 10 years before that time than there were at the time he was testifying. That the negro population in the county has decreased instead of increased. There were not as many negro children as there were 20 years before, but there were about the same number in the schools now that were there about 6 years before. That there were about 3,000 or 3,500 negro children in the county, and about 7,000 white children. He did not know how many qualified negro voters there were, nor how many qualified negro jurors there were in the county. He could not even make a guess at how many could read and write.

He also introduced Frank Oltorf, county attorney of Falls county, at that time, who testified that he knew a negro named Edmund Brown; that he came to his office several days before the trial and told him he was summoned as a special venireman in the John Oaks’ Case, which was pending then on the docket of said district court, in which the defendant therein, a negro, was charged with murder; that Edmund Brown is a negro; that the venire in this ease (appellant’s case) was drawn from the list of names drawn by the same jury commissioners that drew the grand and petit jurors for this term of court; that said Edmund Brown, a negro, was the only man of that name in the county that he knew.

We have thus given in full the testimony of Turner, the only one of the three jury commissioners who testified on the hearing of said motions, and we have given the substance of the testimony of each of the other witnesses. This is all of the testimony introduced by appellant on his said two motions and all that was offered to be introduced by him on the hearing thereof.

From this testimony it will be seen that the appellant nowhere proved, or offered to prove, that he was a negro, or a person of color and African descent, as alleged by him. It is just as essential for him to prove this fact, if it be a fact, as it is for him to prove, if he could, that the negro race to which he belonged, if he did, had been discriminated against because, and solely because, of race prejudice. Neither of his motions, even though sworn to, was offered in evidence, nor would they be competent evidence unless agreed to be used as such by the representative of the state on the hearing of these motions. In this case they were not so offered, nor agreed to be considered as evidence therein. And as the evidence offered wholly fails to prove appellant’s allegations in his motions, the court did not err in overruling both of them.

The state contends in this case that the testimony of Turner, taken as a whole, does not show that negroes were excluded from either the grand or petit jury because of prejudice against that race, and contends that the- testimony of Turner, taken as a whole, did not require the court to find that there was any exclusion of the negroes from the grand or petit jury solely because of race prejudice; the state contending that while the testimony of the witness Turner on direct examination might justify or require the court to so find, but in the very next breath he testified to such a state of facts as would rather exclude the idea that the jury commissioners excluded negroes solely because of race prejudice against them. The state also contends that as the burden to prove these allegations by appellant in his motion was on him, and as the court heard the witnesses, saw their manner of testifying, was justified in overruling the motions, because the appellant had not proven his allegations of race prejudice. There is much force in the state’s contention. We are not advised by the record whether the court after hearing the testimony found against appellant on that issue or not. It is unnecessary for us now to pass upon it, for, as stated above, the appellant clearly did not show by any evidence introduced, or offered to be introduced, that he was a negro or belonged to the African race. Of course, if it should have been shown that he was a Mexican, for instance, or belonged to any other race than to the negro race, his motions were properly overruled the burden being on him to show this, if he could, and his failure to do so would require the court to overrule his motions.

Besides this, his motion to quash the indictment clearly was not within time. Our law requires that motions challenging the array of grand jurors shall he made at the time the grand jury is impaneled, and not afterwards, and that any person confined in the jail upon his request shall be brought into court to make such challenge. The record shows with sufficient certainty that the appellant was arrested, as stated above, either on the day of the killing, or the next day, September 6, 1910, and that he was confined in the county jail at the county seat, where the court was held, and the grand jury impaneled, from that time continuously until the indictment was found on January 14, 1911, and he does not show or claim that he was denied this privilege, or that he asked it, and hence his motion to quash the indictment was properly overruled on that ground. Articles 397, 559, and 561 of the Code of Criminal Procedure. Martin v. Texas, 200 U. S. 318, 26 Sup. Ct. 338, 50 L. Ed. 497; Franklin v. South Carolina, 218 U. S. 164, 30 Sup. Ct. 640, 54 L. Ed. 980; Brownfield v. South Carolina, 189 U. S. 428, 23 Sup. Ct. 513, 47 L. Ed. 882; Carter v. Texas, 177 U. S. 442, 20 Sup. Ct. 687, 44 L. Ed. 839; Smith v. Mississippi, 162 U. S. 592, 16 Sup. Ct. 900, 40 L. Ed. 1082; Williams v. Mississippi, 170 U. S. 213, 18 Sup. Ct. 583, 42 L. Ed. 1012.

Appellant’s third bill of exception is to the effect that on the trial of this cause, while the assistant county attorney was delivering his opening speech, he denounced the defendant as a brute and fiendish criminal; that the appellant then and there objected to such epithets being applied to the defendant, and requested the court to instruct the jury not to regard said statements of the assistant county attorney, but claims that the court refused this, and allowed the attorney to proceed with his argument, to which' appellant excepted because such language was calculated to inflame the minds of the jury. There is also in the record a refused special charge requested by appellant, to this effect: “You are instructed that counsel for the state should not apply epithets to defendant, and said counsel should not have called defendant a brute or a fiendish criminal, or that he is a fiend, and you will not consider said argument for any purpose.” The court, in allowing the bill of exceptions on these grounds, qualified it as follows: “I was busy preparing the charge while Thomas Bartlett, Esq., was making the opening address in the case. His speech occupied hardly 10 minutes, and I heard no part of it. When the objection was made by Counsel for the defendant to the remarks complained of, Mr. Bartlett denied making them, and, as I did not hear them,, I gave the jury no instructions on the subject. The explanation of the bill of exceptions refusing to give the written charge requested by the defendant on this point is referred to and made a part of the explanation of this bill. I am quite sure that what Mr. Bartlett said in his address to the jury did not influence them one way or another, although I would have instructed the jury as requested if I had heard any such remarks as those complained of, made by Mr. Bartlett, and would have done so anyhow had he not denied making the remarks in his address complained of.” Under the circumstances, no reversible error is shown in this matter.

The only other bill in the record is to the refusal of the court to give another requested charge by appellant to the jury. This requested charge is as follows: “You are instructed that if you believe from the evidence • that the defendant, Dan McCline, killed Rosa Tubbs, but believe he went to the field of Mr. Case for the purpose of persuading her to go home with him, and that on her.stating to him that she would rather die than marry him, he (the defendant) became enraged, and in the heat of passion caused by her acts and words shot deceased, then you cannot find the defendant guilty of murder in the first degree, and, if you have a reasonable doubt thereof, you will give him the benefit of it, and not convict him of murder in the first degree.” In approving this bill the court qualified it as follows: “The witness Edy Dickens, who was present at the time of the shooting, said that: ‘Rosa and Dan and I left the wagon together. We were going to the house for our dinner. We got up to the wire fence and got through the fence. He says, “Didn’t you promise to marry me?” He says, “Ain’t you going back up yonder with me?” She says, “No, I ain’t going back up yonder any more.” He says, “I am going to kill you,” and reached for his gun.’ Mr. Casey while standing with deceased and defendant at the wagon, testified: ‘That Dan said something to Rosa about going back and working out the money. He wanted her to go back and work it out. She told him, no, that she would die before she would go back up there; she never intended to go back up there any more. After that they walked off together.’ W. E. Case testified that to the place of the killing from where the wagon stood and the conversation was, Case testified about, was a hundred yards or a little more.”

As we understand this qualification by the court, it was intended to show that the evidence did not call for or justify such a charge as appellant requested. After a careful consideration of the evidence in this case, we believe the evidence did not raise any such issue, and that the court was justified in refusing to give the special charge requested. The evidence does not raise the issue. Hence there is no reversible error shown in the refusal to give this special charge.

There are no other questions raised or presented in the record requiring any further discussion by us.

There being no reversible error in the record, the judgment will be affirmed.  