Connelly v. State

• Citation: 248 S.W. 340
• Decision Date: 24 January 1923
• Docket Number: (No. 7247.)
• Parties: CONNELLY v. STATE.
• Court: Texas Court of Criminal Appeals

248 S.W. 340

CONNELLY v. STATE.

(No. 7247.)

Court of Criminal Appeals of Texas.

January 24, 1923.

Rehearing Denied February 28, 1923.

Appeal from District Court, Hardin County; J. L. Manry, Judge.

M. E. Connelly was convicted of embezzlement, and he appeals. Affirmed.

Coe & Briggs, of Kountze, and A. D. Lipscomb, of Beaumont, for appellant.

Chap H. Cain, Dist. Atty., of Liberty, Ned B. Morris, of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in district court of Hardin county of embezzlement, and his punishment fixed at two years in the penitentiary.

Appellant was not represented by counsel on his trial. The record contains no objection to the indictment, to the charge of the court, or to the introduction or rejection of evidence. Said indictment is as follows:

"In the Name and by the Authority of the State of Texas:

"The grand jurors for the county of Hardin, state aforesaid, duly organized as such at the September term, A. D. 1921, of the district court for said county, upon their oaths in said court present that M. E. Connelly, on or about the 21st day of July, one thousand nine hundred and twenty, and anterior to the presentment of this indictment, in the county of Hardin and state of Texas, was cashier of the Citizens' National Bank of Sour Lake, Texas, a corporation, and the said Connelly did then and there unlawfully and fraudulently embezzle, misapply, and convert to his own use, without the consent of the said Citizens' National Bank of Sour Lake, Texas, certain money belonging to said bank, to wit one hundred ($100.00) dollars in money, of the value of one hundred ($100.00) dollars which said money had come into the possession and was under the care of the said Connelly by virtue of his said employment as cashier of said bank; against the peace and dignity of the state."

We set this out at length because the most of appellant's objections are directed at the sufficiency of the indictment. Both by motion in arrest of judgment and for a new trial appellant contended that he was not sufficiently charged with the duty of receiving any money as agent of the bank, nor that as such agent was it shown that he embezzled the money of said bank; also he insists there is no allegation of the want of consent of his principal; further that there is no allegation as to whether said bank was incorporated under the laws of Texas or of the United States; also he insists the indictment charges no offense against the law, and it is most strenuously urged that, a man having sat on said grand jury who was admitted by the state by agreement filed herein to have been neither a freeholder in this state nor a householder in Hardin county, the said grand jury was illegally composed, and all proceedings had in presenting the indictment were thus rendered void.

Chapter 1, tit. 7, of our Code of Criminal Procedure, provides the qualifications and method of organization of a grand jury, and provides in article 409 as follows:

"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 the qualifications 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."

Article 413 of said Code sets out the grounds upon which a challenge to a particular juror may be based. In Carter v. State, 39 Tex. Cr. R. 345, 46 S. W. 236, 48 S. W. 508, reversed by the Supreme Court of the United States on other grounds, 177 U. S. 442, 20 Sup....