265 S.W. 891


COATS
v.
STATE.


(No. 8277.)


Court of Criminal Appeals of Texas.
May 14, 1924.
Rehearing Denied November 12, 1924.

        Appeal from District Court, Freestone County; J. R. Bell, Judge.

        B. H. Coats was convicted of unlawful transportation of intoxicating liquor, and he 
appeals. Affirmed.

        Levi Herring, of Fairfield, for appellant.

        Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, 
for the State.

        MORROW, P. J.

        The offense is the unlawful transportation of intoxicating liquor; punishment fixed at 
confinement in the penitentiary for a period of three years. The evidence is not brought 
forward for review. The complaint of the refusal of the court to quash the indictment is 
supported by substantially the same facts and legal propositions as were the subject of 
discussion by this court in the case of Mose Bryant v.

Page 892

State (No. 8303) 260 S. W. 598, recently decided, which was appealed from the same 
court as the present case.

        The court sustained the motion to challenge the array of the petit jurors, and directed 
the sheriff to summon 36 men as jurors for the week. A motion to set aside the jurors 
summoned by the sheriff, and to appoint an elisor to summon others, was made and 
overruled. This was made upon the averment in the motion, which was verified by the 
appellant, that the sheriff was a material witness against him. The court, in qualifying the 
bill, stated that the sheriff was guilty of no improper conduct. No evidence seems to have 
been heard in support of the motion. The fact alone that the sheriff was a material witness 
in behalf of the state is not understood to disqualify him from performing the duties to 
summon the jurymen. Upon this subject we quote from Cyc. of Law & Proc. vol. 24, pp. 
226, 227:

        "An officer is not qualified to act in summoning a jury if he is a party to the action, a 
relative, an attorney of one of the parties, or if he is interested in the event of the action, 
although not a part of record; but a very remote or contingent interest will not disqualify."

        "It is not, however, necessarily a ground of challenge that the officer who 
summoned the jury is a witness, a relative of the prosecuting attorney, a relative of a 
person who is security for costs, or that he furnished the information on which the 
warrant of arrest was issued."

        We have not found, nor have we been referred to, any judicial declaration at 
variance with the matter quoted from the text. Even if the averments in the motion were 
such as to imply a disqualification of the sheriff to summon the jury, we do not 
understand that this would have obliged the court to act upon a motion supported alone 
by the affidavit of the party, and the conclusion of the court against the disqualification, 
as appears in this case, would not be reviewed on appeal in the absence of an abuse of 
discretion. State v. Matthews, 98 Mo. 119, 10 S. W. 30, 11 S. W. 1136; State v. Leabo, 
89 Mo. 247, 1 S. W. 288.

        Another bill complains of the argument of the district attorney. From it we quote:

        "Gentlemen, if you should fail to convict this defendant, the Statue of Liberty would 
hang her head in shame; you had as well tear down the courthouse and plant the ground 
upon which it stands in a corn patch so they could use it, and manufacture liquor and 
serve it to the public; the sheriff of this county had as well surrender his commission, 
because his acts will be for naught."

        Though this flight of imagination may not with propriety be cited as a model of 
eloquence nor an example of logic, it cannot be assumed that the verdict of the jury was 
responsive to the extravagant statement of counsel rather than to the facts adduced upon 
the trial. In the reviewing court, the verdict having the sanction of the trial court and the 
evidence heard are important elements in estimating the effect of remarks of counsel 
which, though improper, are not obviously harmful. Tucker v. State, 96 Tex. Cr. R. 356, 
257 S. W. 260; Branch's Crim. Law, § 62.

        In the absence of the facts that were before the jury in the present case, this court is 
not in a position to hold that the argument quoted justifies a reversal of the judgment.

        An affirmance is ordered.