No. 7057. | Tex. Crim. App. | Nov 8, 1922
Lead Opinion
Appellant was convicted in the District Court of Eastland County of the offense of selling intoxicating liquor, and his punishment fixed at confinement in the penitentiary for one year.
We are unable to agree with appellant's contention as set forth in his bill of exceptions No. 1 that the trial court committed error in excusing from the list of grand jurors certain men drawn thereon, and in instructing the sheriff to summon other men to take the places of those so excused. We do not think the law regarding the formation of a grand jury should have such rigid and inflexible construction as that the trial court may not excuse from service on such grand jury, citizens whose reasons as presented to the court, appeal to his sound discretion and were such as to seem to justify such action. Garrett v. State,
Appellant complains by his bill of exceptions No. 2 of the introduction in evidence of his confession. We find nothing in said bill of exceptions in any way substantiating appellant's objections as stated to the reception of such confession. The officer who took same testified that he gave the defendant a warning, apparently in the terms of the statute, and that after said warning was given the accused proceeded to make the statement introduced in evidence. A statement in the bill of exceptions that said confession was extorted by threats of personal violence, would not appear to be sustained, in the absence of some showing in said bill of said fact further than the statement thereof by appellant's counsel in stating the ground of his objection.
We do not believe any error appears in bill of exceptions No. 3 which complains of the refusal of the trial court to permit appellant to prove that a State witness on one occasion registered at a hotel as the wife of a man with whom she stayed that night who was not her husband. There is no effort made to show the general reputation of said witness, or to attack her in any way except by an attempt to prove the isolated matter just mentioned. McIntosh v. State, 91 Tex.Crim. Rep., 239 S.W., 622" court="Tex. Crim. App." date_filed="1922-02-01" href="https://app.midpage.ai/document/mcintosh-v-state-3910271?utm_source=webapp" opinion_id="3910271">239 S.W. Rep., 622.
Appellant has two bills of exception complaining of the argument of the State's attorney. We have carefully examined each of said bills and find nothing in same which in our opinion would call for a reversal of this case.
There was no error on the part of the trial court in declining to submit to the jury the issue of suspended sentence. The charge against appellant was a violation of the amended Dean Law and the uncontroverted proof in the case showed he was a man fifty years of age. The benefit of suspended sentence in such case is denied by statute.
Finding no error in the record, the judgment will be affirmed.
Affirmed. *530
Addendum
When the Thirty-seventh Legislature (1st and 2d Called Sessions, Chapter 61, page 233) amended the law relative to intoxicating liquors it provided in Section 2d that "no person over twenty-five years of age convicted under any of the provisions of this act shall have the benefit of the suspended sentence law." Appellant attacks this provision as being discriminatory and in violation of Section 3 of the Bill of Rights, and criticizes our opinion for not discussing the constitutionality of the Act. He presents an interesting and persuasive argument, but favors us with no authorities supporting his position. The identical question was passed upon in the case of Pearl Davis v. State, (No. 7127, opinion November 1, 1922), holding against the contention.
Appellant urges that in disposing of his assigned error for the trial court's refusal to quash the indictment because of alleged illegality of the grand jury we misapprehended the bill of exception presenting the questions. The bill makes it clear that after excuses and exemptions had been passed upon there remained twelve legally qualified grand jurors who had made no excuses and claimed no exemptions and who had been drawn by the jury commissioners; that the trial judge stated he wanted more grand jurors from Ranger and Cisco, as said towns were not properly represented; two of the twelve remarked if the court intended to excuse any of the grand jurors they had important business and would be glad to be excused, whereupon the two were excused, and the judge requested the sheriff to summon one juror from Ranger and one from Cisco to fill out the grand jury. The bill shows that two others were summoned but fails to show whether they were secured from Ranger and Cisco. Appellant's ground for seeking to quash the indictment was that the grand jury as organized with the two last summoned men upon it, was not selected by the jury commissioners, and therefore was not a legally constituted grand jury, and therefore their act in returning the indictment was "illegal, null and void."
It may be conceded that the impannelment of the grand jury was irregular in a respect which if properly and timely taken advantage of would have availed appellant. Article 409, C.C.P., provides that,
"Any person, before the grand jury has been impaneled, may challenge the array of jurors or any person presented as a grand juror; and in no other way, shall objections to thequalifications and legality of the grand jury be heard. Any person confined in jail in the county shall, upon his request, be brought into court to make such challenge.
One ground for challenge to the array is (Art 417, C.C.P.) "That the persons summoned as grand jurors are not, in fact, the persons selected by the jury commissioners." *531
We are not advised by the bill of exceptions that appellant sought to challenge the array, or that he was deprived of the opportunity to present such challenge. It was the evident purpose of the Legislature in enacting Article 409, supra, to place certain limitations of time on attacks upon the organization of the grand jury. Since the Carter case, (39 Tex.Crim. Rep., 46 S.W., 236" court="Tex. Crim. App." date_filed="1898-05-25" href="https://app.midpage.ai/document/carter-v-state-3973372?utm_source=webapp" opinion_id="3973372">46 S.W. Rep., 236, 48 S.W. Rep., 508,
For the reasons given we conclude the motion for rehearing should be overruled, and it is so ordered.
Overruled. *532