
    PLAIR v. STATE.
    (No. 9373.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1925.
    State’s Rehearing Denied Jan. 27, 1926.)
    (.Jury <&wkey;!3l((3) — Refusal to permit examination of jurors individually as basis for peremptory challenge held error.
    Refusal to permit defendant’s counsel to examine jurors individually, to determine propriety of peremptory challenges, was reversible errsr, in view of Vernon’s Ann. Code Cr. Proc. 1916, arts. 4 and 692, although court propounded same questions to jurors collectively.
    2. Jury <&wkey;l3l (15) — Jurors may be asked any questions likely to elicit facts enabling counsel to properly exercise right of peremptory challenge.
    Counsel for accused may be allowed to ask any question that would likely elicit facts enabling him to intelligently exercise, liis right of peremptory challenge, or challenge for cause, in view of Vernon’s Ann. Code Cr. Proc. 1916-arts. 4 and 692.
    3. Criminal law <&wkey;l 152(2) — Jury <@=3131(2); —Nature and scope of examination of jurors within discretion of trial court; abuse of discretion as to examination of jurors is reviewable.
    Within reasonable limits, nature and scope of examination of jurors is within control of trial court, but, when such discretion is abused, ruling will be corrected on appeal.
    4. Jury <&wkey;l3l(l3) — No right to refuse privilege of examining jurors individually within reasonable limits.
    Right of court to confine examination of jurors to reasonable limits does not carry with it right to refuse counsel privilege of examining each juror individually within reasonable limits.
    On Motion for Rehearing.
    5. Jury <&wkey; 131 (15)— Relevancy and materiality of questions and answers as basis for challenge for cause are important.
    In laying a predicate for challenge for cause, relevancy and materiality of questions and answers is important.
    6. Jury &wkey;>l3l(l3) — Prolix examination of jurors held not a waiver of right to examine jurors individually.
    In examination of jurors to determine proper exercise of peremptory challenge, fact that defendant was prolix in examination of individual jurors does not operate as a waiver of right to examine remaining jurors individually Within reasonable limits.
    Commissioners’ Decision.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Prince Plair was convicted of theft, and he appeals.
    Reversed and remanded.
    M. F. Cate and Morris Brin, both of Terrell, and Grady Niblo, of Dallas, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The appellant was convicted in the district court of Kaufman county for the offense of theft, and his punishment assessed at 3 years’ confinement in the penitentiary.

The record is very voluminous, but we do not deem it necessary to discuss but one question raised as the other matters complained of may not occur in the same form in the event of another trial. By bill of exceptions No. 1, appellant complains at the action of- the court in refusing to permit him to in- ■ dividually examine each of the jurors in order that he might intelligently exercise his peremptory challenges. Appellant especially complains that the court refused to permit him to ash each of the jurors separately if he would require the state to prove the defendant’s guilt beyond a reasonable doubt before he would convict, and on his refusal to permit counsel to ask each of the jurors as to whether they had any prejudice against the defendant because he is of the- negro race, and if they would each try the case and give him the same fair and impartial triál as they would a white man similarly charged.

By bill No. 2, appellant complains because the court refused to permit him to ask each of the jurors separately and individually as to whether they knew W. 0. McCord, the alleged injured party or Mr. Davis, manager of the store from which the goods were stolen, and in his refusal to permit him to ask them if they did know them, would the fact that the goods alleged to have been stolen in the indictment in this case were the property of these parties in any manner influence the jury in arriving at a fair verdict in the case, and in refusing to permit him to ask the individual jurors if they had any knowledge of the facts in the case, or of the facts growing out of the ease, which might affect the jurors in being perfectly fair.

Bill of exceptions No. 3 complains because the court refused to permit him to ask each juror individually if he believed in the suspended sentence law as the same is now upon .the, statutes of the state, and to ask them if they would give the defendant ■ the suspended sentence if he met the requirements of the said statute, and if they believed him justly entitled to the same. The court’s qualification to each of these bills is to the effect that appellant’s counsel was questioning the jurors individually and separately, and questioned four or five jurors, and consumed a very great length of time, and at the rate he was questioning it would have required much more than the whole day to complete the panel, and that the court made a note of every question asked the jurors by the attorney, and, in the interest of time and the patience of the court, propounded the same questions to the jurors collectively, with an admonition that the questions were directed to each individually, and for any one to speak up and answer, which was done.

We think the learned trial judge fell into error in this matter. Article 4 of Vernon’s C. C. P. provided that an accused person shall have the right of being heard by himself or counsel or both. This article of the statute is a literal copy of one section of our bill of rights, and it cannot and ought not to be in any manner abridged. Article 692, Vernon’s C. C. P., lays down the reasons for which a challenge for cause may be made, and among those reasons is one to the effect that bias or prejudice in favor of or against the defendant shall be ground for challenge for cause. Another is where a juror has from hearsay or otherwise established in his mind such a conclusion as to the guilt or innocence as will influence him in' finding a verdict. In determining a question of this character, it is right and permissible for the court to allow counsel to ask any questions that will likely elicit facts that will enable him to intelligently exercise his right of a peremptory challenge. It is also well settled, of course, that within reasonable limits the questions to be asked and the scope of the examination of the jurors is within the control of the trial court. It is also well settled, however, that his discretion in the matter has limitations, and, when it is abused, his ruling will be corrected on appeal. We think no case can be found in this state where it has been held permissible for the trial court to refuse to allow counsel to examine the jurors individually as to their qualification. We think the distinction is clear between an examination of this character and the mere asking of jurors the same questions in a group. There is a certain degree of timidity and diffidence about some jurors that would be calculated to cause them to remain silent unless personally called upon to answer any question. Again we think it clear that the right to appear by counsel carries with it the right of counsel to interrogate each juror individually, to the end that he may form his own conclusion after this personal contact with the juror as to whether, in the counsel’s judgment, he would be acceptable to him, or whether on the other hand he should exercise a peremptory challenge to keep him off of the jury. Reich v. State, 94 Tex. Cr. R. 449, 251 S. W. 1072; Barnes v. State (Tex. Cr. App.) 88 S. W. 805; Gilmore v. State, 37 Tex. Cr. R. 81, 38 S. W. 787; Kerley v. State, 89 Tex. Cr. R. 199, 230 S. W. 163.

Prom what has been said, we would not be understood as departing from the rule that any matter of examination of jurors must be within reasonable limits, and it is the right as well as the duty of the court to confine same to such limits, but this does not carry with it the right to refuse to appellant’s counsel the privilege of examining each juror individually within reasonable limits. It has been said by this court:

“It is always commendable for a trial court to dispatch business with promptness and expedition, but this salutary result must never be obtained at the risk of denying to a party on trial a substantial right.” Carter v. State, 100 Tex. Cr. R. 247, 272 S. W. 477.

Because, in our opinion, the court erred in refusing to permit appellant’s counsel a reasonable opportunity to examine the jurors individually on their voir dire, it is our opinion that the judgment should be reversed1, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

In a motion for rehearing showing research and ability, the county attorney insists that, in reversing the case, this court was in error.

In his motion, the precedents to which reference is made in the original opinion are discussed at some length. Among them are Caton v. State, 66 Tex. Cr. R. 473, 147 S. W. 590; Bartlett v. State, 82 Tex. Cr. R. 468, 200 S. W. 839; Reich v. State, 94 Tex. Cr. R. 449, 251 S. W. 1072; Barnes v. State (Tex. Cr. App.) 88 S. W. 805; Gilmore v. State, 37 Tex. Cr. R. 81, 38 S. W. 787; Kerley v. State, 89 Tex. Cr. R. 199, 230 S. W. 163. He also refers to Davis v. State, 19 Tex. App. 201; King v. State (Tex. Cr. App.) 64 S. W. 245. In his analysis of them, state’s counsel has taken no note of the distinction between the procedure with reference to a peremptory challenge and a challenge for cause.

To prepare himself for the intelligent exercise of the peremptory challenges allowed him by statute, one accused of crime has the right, through his counsel, to direct to the veniremen appropriate questions. See Vernon’s Tex. C. C. P. art. 690; Belcher v. State, 96 Tex. Cr. R. 383, 257 S. W. 1097, and precedents cited therein. He has such right also when his questions are framed with the view of challenging for cause. In each instance, it is within the province of the presiding judge to limit and control the examination; and, in so doing, his discretion is broad, but does not embrace the right to deny the privilege of having counsel examine the veniremen. When the effort is to lay a predicate for challenge for cause, the relevancy and materiality of the question propounded and the answer sought is important, in order that the trial court may intelligently rule, and the appellate court review. In ascertaining whether a peremptory challenge is to be used, the inquiry is intended to elicit information upon which the accused or his counsel may determine whether the privilege of arbitrarily excusing the juror shall be exercised. These principles are stated in the cases collated in Belcher v. State, supra; Kerley v. State, supra; also in Reich v. State, 94 Tex. Cr. R. 449, 251 S. W. 1072, and cases therein collated.

As shown by the present record, the accused was denied the right of propounding questions to the proposed jurors in order to obtain information upon which he might intelligently exercise his peremptory challenges. In qualifying the bill, the court seems to justify his action upon the fact that appellant’s counsel had abused the privilege with reference to thos'e veniremen to whom he directed questions by extending his examination too far. As stated above, the court had the right to control the examination and keep it within proper limits; and, from the qualification, he might well have exercised this privilege with reference to the examination of such of the jurors as counsel for appellant was permitted to examine; but the fact that appellant had been prolix in the examination allowed would not operate as a waiver of the right of counsel for the accused to examine those to whom he had directed no questions.

Believing that the proper disposition of. the ease was made on the original hearing, the motion for rehearing is overruled. 
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