
    McNEAL v. STATE.
    (No. 9021.)
    (Court of Criminal Appeals of Texas.
    May 20, 1925.
    Appellant’s Rehearing Denied June 24, 1925.)
    1. Criminal law' ⅛=»956( 10) — Evidence of juror’s prejudice sufficient to require new trial.
    Testimony of witness, whose veracity was not questioned, on motion for new trial, that juror in argument several days before trial had declared that accused should be hung, and he would help hang him if jury did not, which juror would not positively deny as having made, held to require new trial, notwithstanding juror testified that he had only said accused should be hanged if guilty.
    2. Criminal law ⅞⅜=>923 (2) — Juror’s predetermination to depend on testimony of certain witnesses held to require new trial.
    In prosecution for statutory rape, admission of juror a few days before. trial that he had said that accused ought to be hanged if guilty, and that if he were juror he would depend largely on little girl’s testimony and that of doctor, held such show of preconceived opinion as to require new trial. .
    3. Indictment and information <©=3 137(2) — Interest of jury commissioner in civil suit not ground for motion to quash indictment.
    Interest of member of jury commission, which drew grand jury, in civil suits pending in courts of county held not grounds for quashing indictment in criminal prosecution.
    4. Jury <©=o65 — Refilling jury wheel from same tax lists used in former improper filling held proper practice; “lost or destroyed.”
    Where names of qualified jurors had been excluded from jury wheel, refilling of new and larger wheel by court order, in accordance with provisions of Vernon’s Sayles’ Ann. Oiv. St. 1914, or Complete Tex. St. 1920, art. .5151, by parties directed to do so by statute from names of all qualified jurors as shown by tax lists originally used in filling wheel, held proper practice, notwithstanding wheel and contents were not literally lost or destroyed within meaning of article 5158.
    5. Jury <®=o63 — Jury wheel made from tax lists of preceding year held proper.
    Notwithstanding, Vernon’s Sayles’ Ann. Civ. St. 1914, or Complete Tex. St. 1920, art. 5151, requires list of qualified jurors as shown from tax list in tax assessor’s office for current year, jury wheel made up before tax list of calendar year has been completed from lists- for preceding year held proper and within meaning of statute.
    6. Criminal law <S=w678(l)~ State should elect on which of two offenses to rely.
    In prosecution for statutory rape, where prosecutrix testified to having had intercourse with accused first on the ground and later on getting back into his car, state should elect on which, offense to -rely.
    Appeal from, District Court, Jefferson County; Geo. C. O’Brien, Judge.
    
      George W. McNeal was convicted of statutory rape, and he appeals.
    Reversed and remanded.
    Kelley & Kelley, of Lawrenceville, Ga., and Howth, Adams & Hart, David E. OTTiel, and 0;Fiel, Wiedemann & Reagan, all of Beaumont, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst.. State’s Atty., for the State.
   LATTIMORE, J.

Conviction in district court of Jefferson county for rape; punishment fixed at death.

Appellant was convicted of statutory rape, the injured female being a girl of about 11 years of age. According to the state’s case, she was playing with two little boys, and the three were invited by appellant to go riding with him in an automobile. The party went into the suburbs, and the boys were given money and told to go to a drug store. The girl testifies that appellant then drove her out to a vacant lot, it being in the nighttime, and that he there had intercourse with her upon the ground, and later, she says, after they got back in the car, he repeated the act.

There are a great many bills of exception which do not seem to present any error. All of them have been examined by us, and a review of them would be of no benefit to any one concerned.

One of the main requisites of a fair and impartial trial is that the jury be composed of men who have not committed themselves to any such prejudgment of the case as creates serious doubt concerning their ability to weigh and impartially decide the issues, therein. In this case one Cahal was a juror. In his motion for new trial ap^ pellant sets up that Cahal had formed and expressed an opinion adverse to the case before being taken as a juror, and that he concealed this fact during his examination. One Brent made an affidavit, which was attached to said motion, that in an argument concerning this ease a short time before trial some one asserted that the parties prosecuting it were pretty rough characters, and that juror Cahal was'present, and spoke up and said:

“Oh, you know better than that; that I already know enough, that if I was on the jury I would hang him (meaning the said McNeal); that if the jury which tried him did not hang him, that I could go with others afterwards and help hang him.”

The state traversed said motion, and attached a controverting affidavit made by Cahal, who therein denied making the above statement but admitted that on the occasion referred to he did say, “If he is guilty he ought to be hanged, and I would depend largely on the little girl’s testimony and that of the doctor.” The makers of both affidavits appeared on the hearing of the motion and reaffirmed their statements, Cahal, however, admitting that on his voir dire he was asked if he had an opinion, and replied that he had none. Cross-examined, he said he did not remember using the language attributed to him by Brent as above quoted, but refused to positively deny making it, and in one place says that possibly he may have said it. We are confronted with the situation of a juror, who has denied on his voir dire that he has any opinion about the case, who is later attacked by a man whose veracity is not questioned, who swears that he heard the juror say a few days before the trial that he knew enough that McNeal ought to be hanged, and if the jury which tries him does not hang him, that he would go with others and dq- it. We have this assertion in a sense supported by the refusal of the juror to deny that he made it. We have the fact that the party in this unenviable position is taken as a juror and votes for the death penalty, and that the jury, which stood on the first ballot, upon the question of penalty, six for death and six for imprisonment, all finally came to the death penalty. We are inclined -to think under all the authorities that this would call for the granting of a new trial. However, we have here the further fact that the impugned juror at best says he does not remember making the statement, but possibly he might, and saying that they were engaged in “an unguarded conversation at the time.” In addition we are compelled to state that we are not at all satisfied but that, on what the juror admits outright that he did sqy, the accused should have been granted another trial. Adverting for a moment to the admitted statement, we notice that in substance he says that in determining McNeal’s guilt he would depend chiefly on the girl and the doctor, and that if he believed appellant guilty, then he should be hung. Can a man get a fair and impartial trial at the hands of a jury the members of which say in advance that they expect to form their conclusion from the testimony of only a part of the state’s witnesses, and if from same they conclude him guilty they will assess the extreme penalty? The penalty in most felony cases is graduated from a minimum to a maximum term of years. Would it be contended in any case that if every talesman summoned admitted on his voir dire that he had discussed the case and had his mind made up to inflict the maximum penalty if convinced of guilt by the testimony of two witnesses named, that a jury composed of men so committed could give the accused a fair trial according to the law and evidence? We think not. It follows in any event, that we are of opinion that a new trial should have been granted to appellant, because he was denied trial before a fair and impartial jury.

Appellant moved to quash the indictment on the ground that one or more members of the jury commission which drew the grand jury were interested in civil suits pending in the courts of Jefferson county. This contention is without merit. Whittle v. State, 43 Tex. Cr. R. 468, 66 S. W. 771. The further issue raised, that the jury commission were not furnished with the tax list, is not sustained by the facts. They were furnished with such list, and, when in doubt as to the qualification of any proposed grand juror, consulted said list to verify their proposed action. Each of the matters set up in the motion has been carefully considered, and we do not agree with any of the points raised.

The motion to quash the special venire is lengthy, and a recital of same would he of no value. 'Briefly, it appears that in accordance with the provisions of chapter 5, title 75, Vernon’s Complete Texas Statutes 1920, that the jury wheel for use in Jefferson county, Tex., between the 1st and 15th of August, 1923, was filled from the list of qualified jurors of said county as shown by the tax lists in the tax assessor’s office for the current year; said jury wheel being so filled for use in obtaining jurors for the various courts of said county during the year 1924 in accord with the provisions of article 5151 of said chapter. Thereafter, in Atwood v. State, 96 Tex. Cr. R. 249, 257 S. W. 563, opinion January 2, 1924, this court held that if. in filling a jury wheel the names of qualified jurors had been intentionally and purposely excluded, that said jury wheel would be illegally filled, and a jury obtained therefrom would be subject to attack. It being true and so ascertained by the trial court that the same conditions obtained in the filling of the Jefferson county wheel, as in the wheel discussed and condemned in said Atwood Case, as soon as knowledge of the rendition of the opinion in said case reached the learned trial judge in this case, as disclosed by the record, he made his order reciting the facts and directing that the jury wheel be emptied and again filled in accordance with the statute as interpreted in said opinion. A new and larger wheel was filled in February, 1924, by those parties directed so to do by statute, and, the wheel being filled at this time from the names of all the qualified jurors as shown by the tax lists used in filling the wheel in August, 1923, and from the wheel thus filled the instant venire was drawn. In our opinion this was proper practice. While the jury wheel and its contents were not literally lost or destroyed, as referred to in article 5158 of said chapter, their use and efficacy for the purpose intended and necessary was lost and destroyed as held by us in the Ivnott Case, 274 S. W. 978, recently decided, and it became the duty of the court below, as nearly as possible in conformity with the statutory direction, to provide for jurors to try jury cases on the dockets of Jefferson county for 1924. If we comprehend the language of article 5151, supra, in its reference to the filling of the jury wheel “from the list of qualified jurors of such county as shown by the tax lists in the tax assessor’s office for the current year,” this means that a complete list of such persons must be had and used, and, it being shown by the testimony herein that in Jefferson county the tax list for '1923 was not completed until October of said year, so that those charged with the duty of filling said wheel in August could not avail themselves of the incomplete tax list for that year, they were compelled to and did use the tax list for 1922. It is further Shown that in an effort apparently to fill said wheel in February, 1924 (from which the instant jury was drawn), in form and manner as nearly as was done at the statutory time in August, 1923, that the names of all qualified jurors shown on the tax list for 1922 were again used. .This, also, we believe to be proper under the facts. The action of the court in filling the wheel in February, 1924, was intended to provide jurors for that year in substitution for those in the wheel as filled in August preceding. To have drawn the names of the proposed jurors from a different 'list than that used in filling the jury wheel in August before would have furnished ground for complaint, and would have appeared a departure from a fair effort to use the names on the tax list of the whole body of jurors which should have been placed in the wheel in August, 1923. The same holding is in No. 8975, Knott v. State (Tex. Cr. App.) 274 S. W. 978, opinion February 11, 1925. There are no other questions raised in the motion to quash the venire which we deem necessary to discuss. The chief complaint was of the fact that the jurors were taken from a wheel filled in February and not from a wheel filled in August, as directed in the statute.

Appellant insists that under the law of election the state should have been required to decide which of the two acts testified to by the prosecuting witness should have been relied upon for submission to the jury. The learned trial judge declined to elect. We have been given much concern over this proposition, but inasmuch as the case must be reversed, if same is tried again we suggest that the court, in his charge to the jury, submit one or the other of the transactions testified to by the girl, provided her testimony is the same upon another trial. The state can suffer no evil results, as the testimony is equally as strong in support of a conviction for one act as the other, and such course on the part of the trial judge would obviate the raising of the same question upon another trial.

For the reasons mentioned, the judgment will be reversed and the cause remanded. 
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