# Wolfe v. State > Court of Criminal Appeals of Texas · January 5, 1944 · 147 Tex. Crim. 62 URL: https://www.frixlaw.com/law-library/cases/3914304 ## Case - **Full name:** J. C. Wolfe v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** January 5, 1944 - **Citations:** 147 Tex. Crim. 62; 178 S.W.2d 274; 1944 Tex. Crim. App. LEXIS 848 - **Precedential status:** Published - **Opinion:** Addendum by Graves - **Judges:** Graves, Beauchamp, Hawkins - **Cited by:** 75 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3914304 ## How later opinions describe it (automated extraction) - stating that objecting party must state that a remaining veniremember is objectionable, although the objecting party need not state why the remaining veniremember is objectionable - holding that trial court should have sustained defense counsel’s challenge for cause against juror who served on the grand jury which found the indictment - holding that if a challenge for cause is improperly denied, the accused need not state why the identified juror left on veni-re was objectionable ## Opinion text ON MOTION FOR REHEARING. GRAVES, Judge. In the original submission hereof Presiding Judge Hawkins and the writer were in accord relative to an affirmance of this cause, Judge Beauchamp dissenting. Upon a more mature reflection, I am of the opinion that appellant’s bill of exceptions No. 4 presents reversible error, and I shall attempt to give my reasons for such belief. It is shown that one F. P. Archer was presented as a possible juror on the venire to try this cause. It was there developed that Mr. Archer was a member of the grand jury which had returned this indictment against appellant. When such fact was made known, appellant challenged such juror for cause, offering such a's a disqualification of the juror to sit in this trial. The trial judge, after an examination of the juror, overruled such • challenge for cause, and appellant exercised one of his peremptory challenges on Mr. Archer. In the progress of the jury selection appellant exercised all of his further peremptory challenges, and in his bill alleges that he was forced to *71 take, among others, one juror Ralph Hughes, who was an objectionable juror to appellant, and upon whom he would have exercised a peremptory challenge had he possessed same, and had he not have been compelled to improperly exercise a peremptory challenge on Mr. Archer. In the original opinion herein we held that this bill was isufficient in that same should have gone further and shown wherein and why Mr. Hughes was an objectionable juror, in that such bill should have shown him to be an unfair and impartial juror before appellant would have been entitled to a reversal of his case because of this overruling ■ of the challenge for cause of the juror Archer. It is true that beginning with the early decisions of this court there has been a general movement toward the doctrine laid down in this original opinion until the same came into full strength in the case of Hudson v. State, 28 Tex. Cr. App. 338, 13 S. W. 388 , as quoted in the original opinion. However the Hudson case does not furnish a clear parallel to the instant case, nor do I think the holding is as strong as it is thought to be in the original opinion. It merely says: “It was error to refuse to stand that juror aside, but the error becomes harmless in view of the fact that the juror did not sit upon the case, the defendant having rid himself of him by a peremptory challenge, and no objectionable juror having sat upon the case.” Not so in the present case, for it is shown that Mr. Hughes sat upon this case, and he was objectionable to appellant, and the only reason he did thus sit was because of the trial court’s error in refusing the challenge for cause to Mr. Archer. That the juror was susceptible to the challenge for cause is admitted in the original opinion, citing Mitchell v. State, supra. Therefore if the trial court had not overruled - such proper challenge, appellant would have been in possession of his tenth peremptory challenge, which he could have used upon Mr. Hughes, without giving any reason therefor, save that he did not desire him. The word peremptory means absolute, conclusive, final, positive, not admitting of question or appeal. Webster’s International Dictionary. We think the line of decisions following the Hudson case, supra, have gone to such an extent in defining an objectionable juror as one subject to a challenge for cause. In the case of *72 Carter v. State, 45 Tex. Cr. R. 433 , 76 S. W. 437 , it is said that in Hudson’s case, supra, “An objectionable juror was said to be one against whom some cause for challenge exists, such as would likely affect his competency, or his impartiality in the trial,” and it was therein held that it was appellant’s duty to show such before an error would be found. We think if a juror was not fair and impartial, such would be a disqualification in itself, and good grounds for challenge for cause, and we think same is provided for under Art. 616, C. C. P. If such be true, then the doctrine should necessarily follow that an objectionable juror could not be reached with a peremptory challenge, but that in order to show a reversible error in improperly allowing an ■ accused only nine peremptory challenges, the person desired to be the recipient of the tenth peremptory challenge should be a proper subject for a successful challenge for cause, thus being susceptible to being challenged on two proper grounds. If one of an accused’s peremptory challenges could be taken from him, why not five be taken, and if five, then why not ten, leaving none, and all jurors be acceptable save unfair and partial ones. We are constrained to' agree with the reasoning in the case of Kerley v. State, 89 Tex. Cr. R. 199 , 230 S. W. 163 , and think that Judge Morrow laid down the proper reasoning therein when he further said, in addition to the quotation set forth in the dissenting opinion: •“ * * * This right having been denied the appellant in the instant case, he having exercised all of the challenges the court would permit him to use, and having been forced to try his case before jurors who were objectionable and whom he sought' to challenge peremptorily, the verdict of conviction rendered by the jury so selected cannot, we think, with due respect to the law, be held to reflect the result of a fair trial by an impartial jury, which it is the design of our law shall be given to those accused of crime.” This case was cited generally with approval in the case of Viley v. State, 244 S. W. 542 , upon the doctrine that an accused charged with a special offense can not be relegated to only ten peremptory challenges by a waiver of the death penalty by the State, there being no discussion, however, of the above quoted excerpts from the opinion in Kerley v. State, supra. It is also observed that the writer of the opinion in the case of Kerley v. State, supra* at a later date wrote the opinion in *73 Johnson v. State, 108 Tex. Cr. R. 499 , 1 S. W. (2d) 896 , in which he followed the Hudson case, supra, without mention of Kerley’s case. We think of the two conflicting opinions the one of first impression followed the better reason. Art. 614, C. C. P. reads as follows: “A peremptory challenge is made to a juror without assigning any reason therefor.” . We do not think that such'a challenge contemplates a showing of bias or prejudice upon a juror’s part. It was a peremptory challenge which was wrongfully taken from appellant, and not one for cause. Again, the Kerley’s case, supra, is mentioned with approval in the opinion in Bennett v. State, 261 S. W. 1036 , relative to the office of a peremptory challenge. Our Brethren of the civil courts have not adopted in full the severity of the Hudson case, supra, and others following it, in that it was held in Preston v. Ohio Oil Co., 121 S. W. (2d) 1043 , that when a litigant was improperly deprived of one of his six peremptory challenges, it was “error of a nature reasonably calculated to prejudice a legal right of the plaintiffs, and therefore in -the absence of a showing by the record, beyond a reasonable doubt, that it was harmless, will be presumed to have been prejudicial. * * * The action of the court in overruling a challenge to a juror in a particular case whose disqualification is under the undisputed facts declared by law must be deemed material, we think, in that it is reasonably calculated to deprive the challenging party of the legal right to six peremptory challenges, by being forced to use one of them upon the challenged juror.” In this Civil Appeals case writ of error was refused by the Supreme Court. This principle seems to have been adopted as sound in M. K. & T. R. R. v. Hannig, 91 Texas 347 , 43 S. W. 508 ; Bell v. Blackwell, 283 S. W. 765 , (Com. App.), as well as being the prevailing rule in many of our sister states, to which we are cited, as well as that of the Supreme Court of the United States, among them being Lewis v. United States, 146 U. S. 370 , 36 L. Ed. 1011 -1014, from which we quote: “The right of challenge comes from the common law with the trial by jury itself, and has always beqn held essential to the fairness of trial by jury. As was said by Blackstone, and repeated by Mr. Justice Story: ‘In criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain *74 number of jurors, without showing any cause at all, which is called a “peremptory challengea provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous. This is grounded on two reasons: 1. As every one must be sensible, what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of ánother; and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning* his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.’ 4 Bl. Com. 353; United States v. Marchant, 4 Mason, 160 , 162, 25 U. S. 480, 12 . Wheat. 480, 482 ( 6 L. Ed. 700 ). See also Co. Lit. 156 b; Termes de la Ley, voc. Challenge, 2 Hawk, chap. 43, Sec. 4; Reg. v. Frost, 9 Car. & P. 129, 137; Hartzell v. Com. 40 Pa. 462, 466 ; State v. Price, 10 Rich. L. 351, 357.’’ We recognize the reluctance with which one in a judicial position should approach a line of decisions of long standing with the purpose of setting aside the doctrine therein laid down, some grey with antiquity, and the doctrine of stare decisis should bear heavily on retaining the integrity of such decisions. However upon a conviction of the inequitable nature of such line of decisions, and their unfairness to one accused of an offense, one’s duty should be plain to correct the same at a presented opportunity. Thus thinking, the line of decisions herein discussed, as illustrated by the Hudson case, supra, and those following it, as well as those preceding it, the same are overruled, and the doctrine here laid down that in- the trial of a criminal case where an accused has been wrongfully deprived of a peremptory challenge by being forced to use such upon a juror who was shown to be subject to a challenge for cause, and such accused has exhausted his peremptory challenges, and a further juror be presented whom he states to be objectionable to him, then it will not be necessary for accused to show in what manner such further juror was objectionable to him, nor to show that such juror was an unfair or partial juror. In further words, we think the accused should only be required to exercise a peremptory challenge on the objectionable juror and not a challenge for cause, nor show grounds for a challenge for cause, nor to show why such juror was objectionable to him. *75 The writer recognizes the fact that he agreed in the original affirmance of this cause, under the rule in Hudson’s case, supra, but upon mature study he believes he was wrong in thus perpetuating that doctrine, and takes this opportunity in receding from such position and deciding this cause in a manner that comports with his ideas of what the law should be, as well as that which is right and wrong. Thus believing, the appellant’s motion for a rehearing is granted, the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3914304. Public record. Not legal advice.