# Smithwick v. State > Court of Criminal Appeals of Texas · October 4, 1950 · 155 Tex. Crim. 292 URL: https://www.frixlaw.com/law-library/cases/9643247 ## Case - **Full name:** Sam Smithwick v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** October 4, 1950 - **Citations:** 155 Tex. Crim. 292; 234 S.W.2d 237; 1950 Tex. Crim. App. LEXIS 1847 - **Precedential status:** Published - **Opinion:** On rehearing by Graves - **Judges:** Beauchamp, Graves - **Cited by:** 10 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/9643247 ## Opinion text ON MOTION FOR REHEARING. GRAVES, Judge. Appellant again presents the proposition that because the officers drawing the special venire out of a list of 480 men selected by the jury commission having drawn the name of C. E. Lloyd, Belton, Texas, afterwards again drew such name and therefore discarded such name thus drawn the second time and drew a further name, eventually presenting appellant with the full 250 names as a venire from which to select a jury herein, —the name of C. E. Lloyd being on such list but once. We are cited to the case of Gunn v. State, 90 Tex. Cr. R. 209 , 234 S.W. 399 , in which case it seems that the persons drawing a special venire to try the accused, drew many names of persons who had valid excuses from serving on such jury. Some of the jurors there drawn seemed to be absent from the county and some were witnesses; and for various reasons, the trial judge, who was present at such drawing, instructed the clerk not to enter such names on the venire list and discarded the same. In other words, the judge excused these prospective jurors without a hearing and exercised his discretion at an improper time. In the present instance, the clerk having once drawn the name of Mr. Lloyd, did not do a useless thing by placing his name twice upon the venire list. The law does not demand that a useless thing be done. Lloyd could serve if he did so, but once as a juror, and to charge his name twice on the venire as a possible juror would have resulted in appellant being offered 249 jurors instead of 250. For purposes of argument, suppose Lloyd’s name had been drawn five times or ten times, he could only serve but once, if at all, and his inclusion on the. list these many times would have resulted in appellant being deprived of his right to have 250 jurors presented on his venire...We are of the opinion that no error is shown herein in such'matter. *302 Bill No. 7 relates to a statement made by a defense witness, A. C. Lloyd, Jr., upon cross-examination by the state, relative to a fight between two of Sheriff’s Sain’s deputies and the deceased in the sheriff’s presence; and in such bill is set forth the deceased’s broadcast relative to certain conditions in the city of Alice, Texas, as follows: “But the real answer is in the county. The hot potato is strictly in Hubert Sain’s lap. Here is a chance for all you church people to make your influence felt. . . . Form a committee . . . send people out to these places and see for yourselves what is happening .... you don’t have to take my word .... I have tried to be accurate .... but this thing is so serious you all should be satisfied.” * * * * “Thereafter and on cross examination the State’s attorney asked said witness this question: “ ‘That Hubert Sain stood in the presence of Charlie Brown, deputy sheriff, that Charlie Brown and another deputy, Brand, whipped Mr. Mason with his fists and then he did tear his pants off, that is correct, isn’t it?’ “To which the witness answered, ‘As far as I know, I understand it to be true.’ “To which question, at that time the same was asked and before it was answered the defendant then and there objected for the reasons that the testimony of said witness was wholly immaterial and irrelevant and did not show the truth of any statements made in the broadcasts. And because even though this witness knows the time, the place, and the occasion, it is not fixed by the broadcasts as to when he says Hubert Sain sent a deputy to tear his pants off and until that is so fixed by the broadcast, the time and the place and the occasion, and the nature of the offense, until that is also established by the State, then we object to the State proving the truth of it. “That the court overruled each and all of the defendant’s objections to said questions and answers at the time same were offered and permitted the witness to testify and answer said question as above set out .... And the court permitted all of said evidence to go before the jury as above stated and defendant then and there in open court at said time excepted to the action and ruling of the court for each and all of the reasons above given.” We are not impressed with its seriousness even if any error *303 is shown in said bill. It is evident that the deceased was denouncing the conduct of Smithwick, as well as Sain, the sheriff, and the fact that a broadcast relative to such fight had been heard, is evidenced by the objection to this testimony, one of these objections being that it was not fixed by the broadcast as to when the deceased said that “Hubert Sain sent a deputy to tear his pants off and until that is so fixed by the broadcast, the time and place and the occasion, and the nature of the offense, until that is also established by the State, then we object to the State proving the truth of it.” The answer of the witness to said question was objected to as immaterial and irrelevant and did not show the truth of any statements made in the broadcast. This assault barely referred to by Lloyd was, of course, made, if at all, before Mason’s death, and might have had some relevancy in showing a motive upon appellant’s part to at least run Mason out of town as is reflected in each of his broadcasts. Surely it might have been one of the circumstances utilized for the purpose of stopping these broadcasts relative to the conditions found in this Rancho Allegro which belonged to this officer of the law, a deputy under sheriff Sain, into whose lap the broadcast had said these conditions rested. We think this difficult case has been properly tried, and that the rights of appellant have been fully protected by his astute attorneys. So believing, the motion will be overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9643247. Public record. Not legal advice.