
    HERRERA v. STATE.
    (No. 3867.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1915.)
    1. Juey <&wkey;l2l — Venire—Failure to Summon.
    _ Where, after motion to quash the special venire in a criminal case because the return of the officer showed he had not summoned all the jurors issued for, and had stated no sufficient reason in the return why they had not been summoned, the sheriff was required to amend his return and show specifically why he had not summoned all, and, after the return was so amended, the court ordered an attachment to issue for such veniremen, overruling of the motion to quash the venire was proper.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 550; Dec. Dig. &wkey;121.]
    2. Constitutional Law <&wkey;2'50 — Juey <&wkey;58 —Juey Wheel Law — Constitutionality.
    The jury wheel law (Acts 30th Leg. c. 139), as amended by Acts 32d Leg. c. 82 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5151), is not unconstitutional and void because it requires that in counties to which the law is applicable, those containing a city of 20,000 inhabitants or more, the lists of qualified jurors shall be taken from the tax list in the tax assessor’s office for the current year, while in other counties all males over 21 years of age are competent jurymen, since the classification of the Legislature is reasonable, in that it sub-serves the purpose of excluding- from the jury box the vagrant and semicriminal class of floating- population-, which appears only in cities and larger towns.
    [Ed. Note. — For other eases, see Constitutional Law, Cent. Dig. §§ 711-713; Dec. Dig. <&wkey;> 250; Jury, Gent. Dig. § 266 ; Dec. Dig. <&wkey;5S.J
    3. Witnesses t&wkey;405 — Impeachment—Immaterial Issue.
    In a prosecution for murder, where a state’s witness testified that she felt bitterly toward defendant, she could not be impeached by evidence that she did not entertain such bitter feeling toward defendant for the reason testified to by her, the reason for her feeling toward defendant being utterly immaterial, while a witness cannot be impeached upon an immaterial issue.
    [Ed. Note.- — For other cases, see Witnesses, Cent. Dig. §§ 1273, 1275; Dec. Dig. &wkey;405.]
    4. Criminal Law &wkey;>105G — Appeal and Er-Rok — Reservation oe Grounds oe Review.
    Where no exception was reserved to the charge as given, nor any special charge refused, the question- of whether the law as submitted to the jury was applicable to the -evidence is not an issue on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. <&wkey; 1056.]
    5. Criminal Law <&wkey;1077 — 1Teiai^-Maeing-up Record.
    Where defendant, two days before overruling of his motion for new trial and pronouncement of sentence, filed affidavit that his case had been appealed, and prayed that the official stenographer be required to make out a statement of facts for him as a pauper appellant, the court committed no error in refusing to entertain the affidavit until after the motion for new trial had been overruled and sentence pronounced, since it could not be known- until then that an appeal would be necessary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2718, 2719; Dec. Dig. <@=> 1077.]
    6. Criminal Law <&wkey;1077 — Appeal—Failure to Furnish Statement.
    Where, after his conviction of murder on second trial, defendant prayed that the official stenographer be ordered to make out a statement of facts for him, as for a pauper appellant, and the court thereafter, at defendant’s instance, made an order granting him 60 days in which to prepare and file a statement of facts, no further steps being taken thereafter by defendant to procure a statement, either by using the statement on the prior appeal to refresh his and his counsel’s memory, or by mandamus to the Court of Criminal Appeals to require the stenographer to do his duty_, defendant was not entitled to reversal of his conviction for failure of the trial court to order the stenographer to furnish a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2718, 2719; Dec. Dig. 1077.]
    7. Criminal Law <S&wkey;1077 — Appeal—Procu-ration oe Statement by Pauper Appellant — Duty oe Court — Statute.
    Where a defendant who has given notice of appeal files affidavit that he cannot pay for a statement of facts or give security therefor, as provided by Acts 32d Leg. c. 119, § 8, it is the duty of the court to make an order requiring the stenographer to make out a statement.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2718, 2719; Dec. Dig. 1077.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Augustine Herrera was convicted of murder, and lie appeals.
    Affirmed.
    Swearingen & Ward and Jno. H. Bickett, Jr., all of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 25 years’ confinement in the penitentiary. This is the second appeal in this case, the opinion of the court ou the former appeal being reported in 170 S. W. 719.

There are but four bills of exception in the record, the first contending that the court erred in refusing to quash the special venire summoned in the case, because the return of the officer showed he had not summoned all the jurors issued for, and no sufficient reason stated in the return why they had not been summoned. The record before us shows that when this motion was filed, on motion of the district attorney, the. sheriff was required to amend his return and show specifically why he had not summoned each of those whom he had not summoned. After this return was thus amended, for all those whom the return failed to show a legal reason for not summoning, the court ordered an attachment to issue for such jurors, and they must have been obtained, as no further complaint was made. Under such circumstances the court did not err in overruling the motion to quash on this ground. Appellant also moved to quash the venire on the ground that the jury wheel law is unconstitutional. In counsel’s brief and in able oral argument made before this court, counsel admits the validity of this law has been upheld by this court in a number of decisions. See Merkel v. State, 171 S. W. 738, where the authorities are cited. It is true that as to the act of 1907 there was a dissent filed to the holding that the law was valid, but in 1911 this law was amended (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5151), and the grounds of the original dissent remedied, and since then this court and the civil courts have been unanimous in sustaining the validity of the law. Appellant, however, insists that the ground he here presents was not passed on in any of the many cases sustaining this law. His contention is that the act of 1911 is unconstitutional and void because the certain officers designated to place in the jury wheel the names of jurors were required to select from the lists of qualified jurors of such counties, as shown by the tax lists in the tax assessor’s office for the current year, the jurors for service in the district and county courts of such county, whereas, in all counties not placed under the provisions of the jury wheel law, all male persons over 21 years of age are competent, unless disqualified by the provisions of the law; that thus limiting the persons authorized to place the names in the jury wheel to those whose names appear on the tax lists constitutes an unlawful and unjust discrimination against defendants to be tried in counties where the jury wheel law is in force. In support of his contention he cites many cases, among them being the Ellis Case, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 660, wherein it was held by the Supreme Court:

“The mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the Eourteenth Amendment, and in all cases it must appear, not merely that a classification has been made, but also that it is based upon some reasonable ground — something which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection.”

The other authorities cited but emphasize this rule of law, and, as we accede to its correctness, we see no necessity to quote them. The jury wheel law in this state is made applicable alone to counties that now contain, or may hereafter contain, a city of 20,000 inhabitants or more. Now are there any reasonable grounds, outside of mere arbitrary classification, why under the-jury wheel law those to select jurors were limited to names appearing on the tax lists, while those to select jurors containing no such city are not so limited. If not, then appellant’s contention may be sound, but if in the opinion of the Legislature a reason existed for making the distinction, the law is not invalid. It is known that in the cities and larger towns there is a shifting, drifting population, whose names never appear on the tax lists, which is not found in the rural communities and smaller towns, and if it was the object and purpose of the Legislature to exclude this class from the jury box, we cannot say they had no authority to do so. It is generally a class that has not much interest in their state or government generally, and in this shifting, drifting population are found those who render crime much more general in the larger cities than in the rural communities. Common experience would teach us that" in the main that class would not only not constitute desirable jurors, but are not counted very desirable citizens. That some young men who may become of age during the year would be excluded from jury service during a short period of time would not render the law invalid, if it was found necessary to adopt the law to reach the objectionable class. There is no arbitrary classification, for the law applies alike to all counties of the same class, and we adhere to the opinion that the law is valid.

In the next bill, and the qualification of the court in approving the same, it is made to appear that Francisca Gleason, a witness for the state, had testified that from the inception' of the case she entertained a feeling of bitterness and animosity towards appellant, and had stated, in answer to questions, as a reason for so doing, that Luz Cmz had told her appellant had said “she was not a maiden” and “was not a lady.” It is thus seen that the witness admitted she entertained a feeling of bitterness and animosity towards appellant, and this was material. When she gave as a reason why she entertained this feeling that Luz Cruz had given her certain information, it would be immaterial whether or not Luz Cruz had given her the information, and the court did not err in so holding. A witness cannot be impeached upon an immaterial issue in the case. It is always material to prove interest, bias, motive, or animosity of a witness as affecting the weight to be given the testimony of the witness, but when she admits she entertains animosity, and in no manner seeks to deny it, the truth or falsity of the reason she gives why she entertains such a state of feeling would be immaterial — it is the state of feeling that is material.

The only other bill of exceptions in the record (outside of the one complaining that the court erred in overruling his motion for a new trial) is one in which appellant contends he has been deprived of a statement of facts without fault or negligence on his part. We will say here that the only ground this could be material on in this case would be the one in the motion for a new trial, in which he contends that the evidence is insufficient to sustain the verdict. There was no exception reserved to the charge as given, nor any special charge refused, so the question of whether or not the law was submitted to the jury as applicable to the evidence is not an issue on this appeal. As hereinbefore shown, this case was before us on a former appeal, and in that ease there was a full statement of the evidence then adduced, and if the evidence on this trial was similar, we would not hesitate to hold it amply sufficient to sustain the verdict. But if appellant has been deprived of a statement of facts without fault or negligence on his part the case should be reversed, for he is entitled to have this court pass on that issue under the evidence heard on this trial. The motion for a new trial was overruled on August 27th, and op the same day appellant was granted 60 days after adjournment of court in which to prepare and have filed a statement of facts in this cause. Before the overruling of the motion for a new trial, appellant, on August 25th, filed an affidavit, in which he stated that, his case having been appealed, he was without funds, and was not able to pay for a statement of facts or to give security therefor, and he prayed that the official stenographer be required to make out a statement of facts for him. How appellant knew on August 25th the court two days later would overrule his motion for a new trial is not made manifest by this record. Certainly the case had not been appealed on August 25th, and notice of appeal was not given until two days later, August 27th, when his motion for a new trial was overruled, and sentence pronounced against him on August 27th. No appeal would lie until this sentence was pronounced. Certainly the court would commit no error in refusing to entertain the affidavit until after the motion for new trial had been overruled an'd sentence pronounced, because it would not be known prior to that time whether or not an appeal would be necessary, and an appeal certainly would not lie- However, on the day the motion for a new trial was overruled, appellant’s counsel filed the following motion:

“Now comes the defendant, Augustine Herrera, and represents to the court, his case having been appealed, that he is without funds and is unable to pay for a statement of facts, all of which is more fully shown by the affidavit of defendant, filed on the 25th day of August, 1915, to which reference is hereby made. Wherefore he prays the court that the official stenographer be ordered to make out a statement of facts in duplicate in this cause and to deliver them as provided in article 846 of the Code of Criminal Procedure.”

There is no order or judgment entry made on this motion in the record before us, if any was ever made. Certainly if this motion was presented to the court and he made any order thereon, the record should show such order was entered in the minutes of the court. However, in a bill of exceptions it is stated the court overruled defendant’s said motion and declined to make an order requiring the stenographer to make out a statement of facts, to which ruling of the court defendant excepted, which bill is approved by the court without qualification, yet the court on that day, August 27th, did make an order, granting 60 days in which appellant could prepare and have filed a statement of facts at appellant’s instance. No further steps were ever taken after this, the 27th day of August, by appellant to obtain or have filed a statement of facts in this cause, other than to get his extension of time. Why he should desire an extension of time is not shown, if no other effort was to be made, for the bill of exceptions discloses that at this time the court stenographer had refused to make out the statement of facts without pay, and the court had refused to make an order requiring him to do so. As said before, there was a complete statement of facts made, agreed to, and filed on the former appeal in this case, and why appellant and his counsel could not take that statement of facts, and with it to refresh their memory, make out, and have filed a statement of facts on this trial is not manifest to us. The Code specifically authorized them to make out a statement of facts, as was formerly done, and present it to the court. This they did not do, although granted 60 days in which to do so. After the court had overruled their motion, without taking other action, they come now and ask us to reverse the case because appellant has been deprived of a statement of facts without fault or negligence on his part. It seems to us that there was legal negligence at least; for this court has held that, if the stenographer refuses to make out a statement of facts, and the court refuses to require him to do so, upon application to us we would issue the necessary process to require the stenographer to mate .out and file a statement of facts in those instances that the law requires him to do so. Burden v. State, 70 Tex. Cr. R. 849, 150 S. W. 1190. No reason is assigned why appellant, during the time allowed by the court and the time allowed by law, did not apply to this court for an order requiring the stenographer to make out a statement of facts. He says the trial court refused to require the court stenographer on August 27th to make out a statement of facts, yet he takes no further steps to obtain a statement of facts, when we had plainly in the Burden Case indicated the steps necessary to be taken by him, after the jurisdiction of this court had attached by haying notice of appeal entered of record. This was done August 27th, and at any time thereafter, upon application to this court, the necessary orders would have been made, requiring the stenographer to make out a statement of the facts adduced on the trial. But appellant takes no action in the premises, and now desires that we reverse the case. Trials are expensive; they take up the time of the court, the jurors, and the witnesses, and the witnesses, at least, who must attend court without pay, have rights as well appellant. We always regret to have a record come before us without a statement of facts; for, in those cases in which the law provides an appeal may be prosecuted, it is his right under the law to have a correct record presented to this court and, if he has not been given that fair and impartial trial guaranteed to him by law, have his case reversed and a new trial granted. Soon after the adoption of the stenographer’s law, this court had the question before it, if appellant filed an affidavit of his inability to pay for a statement of facts, this would be all the diligence required! by the law, and it was held by this court in Peddy v. State, 63 Tex. Cr. R. 483, 140 S. W. 229, following the rule established by the civil courts, that this was not diligence, but application must be made for a writ of mandamus to require the stenographer to do his duty, and if this was not done, appellant would not be entitled to a reversal of his case. And, following the rule thus established, in the Burden Case, supra, we held that if the trial court did not do his duty, application should be made to this court, and we would require the stenographer to do his duty, and if a statement of facts could not thus be obtained, the case would be reversed. No such showing being made in this case, no application having ever been made to this court, at any time to issue a writ, diligence has not been used by appellant to obtain a statement of facts, and he is not entitled to a reversal of the cause.

While not necessary to a decision of this case, we will say that when the affidavit has been filed by one who has given notice of appeal that he is unable to pay for having made out a statement of facts by the stenographer, or to give security therefor, it is the duty of the trial court, upon the refusal of the stenographer to comply with the law, upon application to compel the stenographer to do so. It may be insisted that a laborer is worthy of his hire, and no man ought to be compelled to do work for which there is no compensation provided, but whenever a stenographer accepts the appointment as official court stenographer, he does so under the law, and he must assume its burdens as well as accept its benefits. He is paid $5 per day for each and every day he may attend upon the court, and in addition thereto he is permitted and authorized to make an extra charge of all litigants who are able to pay for a transcript. But the law will not and does not close its door to the poor and indigent. They are entitled to their day in court — to have their wrongs, if any they have suffered, corrected and justice meted out to them, no matter how poor they or he may be. Lawyers, sheriffs, clerks, stenographers, and all officers of the court are required by law to perform certain duties without pay, when a defendant or other litigant is unable to pay. If the stenographer, when this affidavit is filed, thinks it does not truly state the facts, he may file a contest, giving reasons why he thinks the affidavit does not state the facts, and if he does so, the court should hear evidence and determine the issue. If no contest is filed, it is the duty of the court, whenever the affidavit is filed, as provided in section 8, e. 119, of the Acts of the Thirty-Second Legislature, to make an order, requiring the court stenographer to make out a statement of facts, and see that this order is complied with. If the trial court will not do so, and after the jurisdiction of this court has attached the facts are made known to this court by affidavit and proper application, we will require the stenographer to do his duty.

The judgment is affirmed. 
      ®r»Eor other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes
     