290 S.W. 541 | Tex. Crim. App. | 1926
Lead Opinion
The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of three years.
The record is not accompanied by any statement of the evidence heard in the trial court.
The indictment is attacked upon averments claiming that certain conduct attributed to the district judge was violative of the statutory provisions governing the selection of persons from whom the grand jury was drawn. The statute requires the appointment by the judge of three commissioners to select the grand jury; that the judge shall instruct them concerning their duties, and that they shall take the oath of office in which it is said:
"* * * that you will not make known to any one the name of any juryman selected by you and reported to the court."
The law directs that they shall not separate; that they shall be kept free from intrusion, and that they shall select sixteen men with certain qualifications, whose names shall be put in a sealed envelope, indorsed with the signatures of the commissioners, and delivered to the judge in open court. See C. C. P., 1925, Arts. 333 to 340, inclusive.
Appellant avers that after appointing and instructing the jury commissioners at the January term, 1925, the judge of the court told them privately to exhibit to him the list of names selected as grand jurors before sealing same; that upon compliance with this request, the judge erased from the list the names of four persons who, he said, were objectionable to him and directed that in their stead others should be selected by the commissioners, which was done. Appellant also avers that at the opening of the September term and before the grand jury was *619 impaneled, one J. H. Davis, a citizen of Hopkins County, and a "person" within the designation of the statute, set up the alleged facts hereinabove recited in a writing verified under oath, upon which averments the said Davis based the challenge to the array to which, according to the appellant's averments, the court sustained a demurrer and impaneled the grand jury from the sixteen persons whose names were embraced in the written report of the jury commissioners in the manner hereinabove mentioned. The averments in substance were supported by the affidavits of the persons who composed the jury commissioners.
Article 570, C. C. P., 1911, reads thus:
"A motion to set aside an indictment or information shall be based on one or more of the following causes, and no other:
1. That it appears by the records of the court that the indictment was not found by at least nine grand jurors, or that the information was not presented after oath made as required in Article 467 (479).
2. That some person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or were voting upon the same."
Article 361, C. C. P., 1925, reads as follows:
"A challenge to the array shall be made in writing for these causes only:
1. That those summoned as grand jurors are not in fact those selected by the jury commissioners.
2. In case of grand jurors summoned by order of the court, that the officer who summoned them had acted corruptly in summoning any one or more of them."
Appellant was indicted Sept. 1, 1925. The date of the offense was laid on the 26th day of May, 1925. The writing attacking the indictment was filed Sept. 25, 1925. As this court conceives the law, the challenge to the array which was described as having been made by J. H. Davis is not available to the appellant. If the appellant was under arrest or under bond charged with the offense at the time the grand jury was impaneled, he was privileged to challenge the array, under the procedure and upon the authority and on the grounds named in the statute which is quoted above, Art. 361, supra. If, under such circumstances, that is, he being under arrest or under bond charged by complaint with an offense, his right to challenge the array would be waived unless exercised by him before the grand jury was impaneled. This, we understand, has been announced by this court upon many occasions, among which are Smith v. State, 97 Tex.Crim. Rep.; Hickox v. State,
A second bill of exceptions complains of the refusal of the court to suppress evidence. The motion is based upon the claim that certain officers became acquainted with criminative facts by the search of the appellant's premises without a valid search warrant. The motion is preliminary, and the action of the court is not available as a ground for reversal. It does not appear *621 from the bill that the evidence to which it relates was in fact before the jury; nor is there a statement of facts showing upon what proof the verdict was rendered. In the absence of information from the record showing the evidence that was before the jury, the presumption will be indulged that it was sufficient to support the judgment. Moreover, the qualification of the bill in effect negatives the averments therein touching the illegal search.
The judgment is affirmed.
Affirmed.
Addendum
Appellant urges that we were in error in holding that the record did not affirmatively show that he was under arrest and charged with this offense at the time the grand jury was organized. He refers us to page 33 of the transcript, affirming that the showing is there made. An investigation shows that the matter referred to is but a statement made by appellant as a part of his objections set out in a bill. There is no affirmation on the part of the trial judge that the matters stated in the objection are in fact true.
The motion for rehearing will be overruled.
Overruled.
