Edgar v. State

• Citation: 127 S.W. 1053
• Parties: EDGAR v. STATE.
• Decision Date: 13 April 1910
• Court: Texas Court of Criminal Appeals

127 S.W. 1053

EDGAR v. STATE.

Court of Criminal Appeals of Texas.

April 13, 1910.

Rehearing Denied May 11, 1910.

Appeal from Upshur County Court; Albert Maberry, Judge.

Jesse Edgar was convicted of violating the local option law, and he appeals. Affirmed.

J. P. Hart and Warren & Briggs, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of violating the local option law.

1. He reserved a bill of exception to the court's refusal to quash the indictment. The ground stated was that the instrument was not returned by a legal grand jury in that one of the jurors, and who signed his name as foreman, was a deputy sheriff of the county, and held a commission as such at the time he served as foreman of the grand jury. The evidence bearing upon this, perpetuated in the bill, shows that the sheriff testified that Green, the foreman of the grand jury, was appointed by him as deputy two years before; that he issued a commission to him to act as such deputy, and that Green complied with the law by taking the oath of office and giving bond; that he had acted as such deputy and discharged his ordinary duties as deputy sheriff; that he had never resigned as such deputy so far as the sheriff knew; that he was at that time acting as deputy sheriff under the original appointment and commission; that after the adjournment of the court at which the bill of indictment was found, Green brought in a party who was charged with a violation of the law, to wit, carrying a pistol, and turned him over to the sheriff. It is further stated by the witness that Green was appointed during the sheriff's first term of office; that he (the witness) was then occupying the office of sheriff for the second term; that Green had not been recommissioned, and did not act as deputy sheriff during the sitting of the grand jury. We are of opinion this did not constitute a sufficient ground to authorize a quashal of the indictment. Green, by reason of his being deputy sheriff, was not disqualified by law to act as grand juror. It has been held that the exemption from jury service of justices of the peace and deputy sheriffs, they being civil officers, is a personal privilege, to be only claimed or waived by them. Such officers are not disqualified by the articles of the Code defining the qualifications of grand jurors, nor by that enumerating the grounds upon which the array of the grand jury may be challenged. Owens v. State, 25 Tex. App. 552, 8 S. W. 658. Objection to the qualification of a person proposed to be impaneled as a grand juror must be made by challenge only, and in no other way can such objection be made. Doss v. State, 28 Tex. App. 506, 13 S. W. 788; Lacy v. State, 31 Tex. Cr. R. 78, 19 S. W. 896. Article 378, White's Ann. Code Cr. Proc., provides who are qualified grand jurors and the necessary qualifications. He must be a citizen of the state and county in which he is to serve, and qualified under the Constitution and laws to vote in said county; he must be a freeholder within the state, or a householder within the county; he must be of sound mind and of good moral character, able to read and write, and must not have been convicted of a felony, and he must not be under indictment or other legal accusation of theft or of any felony. Deputy sheriffs and other civil officers are not disqualified under that clause of the statute. Article 401 of the Code of Criminal Procedure is as follows: "A challenge to a particular juror may be made orally, and for the following causes only: (1) That he is not a qualified grand juror. (2) That he is the prosecutor upon an accusation against the person making the challenge. (3) That he is related by consanguinity or affinity to some person who has been held to bail, or who is in confinement upon a criminal accusation." Construing this statute, the court has held that the exemption from the jury service of deputy sheriffs and civil officers is a personal privilege to be claimed or waived by them, and they are not disqualified by the articles of the Code defining the qualifications of grand jurors, nor by that enumerating the grounds upon which the array of that body may be challenged. As a general rule, the above statutes must be followed in order for the accused to take advantage of a challenge to the array or to a particular juror. If the grand juror, however, was disqualified from sitting, still the question can be raised on the ground that a person was present with the grand jury during its deliberations not authorized to be present, and the latter rule would apply to any person who was present without legal authority, or who was inhibited from being present. That is a well-settled rule. But the juror Green, mentioned in this case, is not brought within that rule. He was not challenged at the time the grand jury was impaneled, served on the grand jury, and was not disqualified. Under the authority of Owen v. State, supra, Green was not brought within the rule that he was an unauthorized person present at the time of the voting on the bill of indictment. It was too late under the circumstances of this case to undertake to challenge the juror Green in motion to quash the indictment. There was no error on the part of the court refusing to quash the indictment.

2. There is another bill of exceptions, which recites that when the jury for the week was tendered appellant, he interrogated them on their voir dire, and propounded to Stephens, Jones, Martin, Blunt, Williams, and Pickett the following question: "Did you not serve as juror in case No. 2,127 in this court, wherein this defendant was also defendant in...