Ex Parte Harris

• Decision Date: 20 May 1931
• Docket Number: No. 13735.,13735.
• Parties: Ex parte HARRIS.
• Court: Texas Court of Criminal Appeals

Page 883

39 S.W.2d 883

Ex parte HARRIS.

No. 13735.

Court of Criminal Appeals of Texas.

May 20, 1931.

Rehearing Denied June 24, 1931.

Appeal from District Court, Harrison County; Reuben A. Hall, Judge.

Petition for writ of habeas corpus by Bernard Harris. From a judgment remanding petitioner to custody, petitioner appeals.

Affirmed.

See, also, 28 S.W.(2d) 813, 70 A. L. R. 1066.

Scott, Casey & Hall and Barret Gibson, all of Marshall, for appellant.

John Taylor, Co. Atty., of Marshall, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, J.

At a hearing before the Honorable Reuben A. Hall, district judge, upon a habeas corpus petition alleging restraint in general terms, appellant was remanded to custody, and has appealed to us. He was under arrest by virtue of a capias issued upon a mandate which followed the affirmance of a felony judgment against him.

As far as we comprehend the complaint of appellant, it was that the indictment against him was void because a man sat on the grand jury who could not read and write; also because another man was present at, and participated in, the deliberations of said grand jury who was unauthorized so to do. We cannot agree with either contention as presented in this record. Neither proposition was so supported before the trial court as to cause us to believe he was wrong in his remanding order. Williams, the alleged illiterate grand juror, was the only witness offered on the question of his ability to read and write. Answering questions, he said: "I can read and write a little bit. * * * I can read ordinary typewriting or printing from studying a little bit; I have to get my glasses and study it over a little bit before I can read —account of my eyes. * * * I can sign my name. * * * It has been a long time since I tried to write a letter. * * * I signed the grand jury report. * * * I can read and write sufficiently to get money from the bank." Neither any statute of this state nor any decision known to us makes ineligible pro tanto for grand jury service a man who can read and write as this witness testified he could.

On the other point made, we note that the transcript of the proceedings had in the trial court starts with the admission or agreement of both the state and defendant, as follows: "That the grand jury was empaneled March 11, 1929, * * * That the grand jury adjourned * * * March 15, 1929." It is true that following the agreed statement each side introduced various matters, and that the state introduced what is called a "Report of Grand Jury," of date March 15, 1929, which contains the statement that "the grand jury has permission to recess subject to call at any time during the March term 1929 of this court," but the record here is silent as to who made such report or how the quoted statement came to be a part of same, and said document, if pertinent, was primarily for construction by the trial court in the light of the surrounding facts. All these matters were before the trial court and counsel for both the state and appellant, who had access to them. With this report of the grand jury at hand, both the state and appellant agreed before the trial court that the grand jury had adjourned. Article 372 of our Code of Criminal Procedure plainly provides that, when the grand jury is discharged for the term, it may be reassembled at any time during the term, and vacancies therein may be filled. The matter has been fully discussed in Trevinio v. State, 27 Tex. App. 372, 11 S. W. 447; Matthews v. State, 42 Tex. Cr. R. 31, 58 S. W. 86, and Millikin v. State, 107 Tex. Cr. R. 332, 296 S. W. 547. It appears here that, when the grand jury were called together, one of the men who had served thereon was absent. Of course, had this been a reconvening of the original grand jury after a temporary recess, there would have been no need for summoning another man, or completing the panel, since,...