Frey v. State

• Decision Date: 25 January 1928
• Docket Number: (No. 11285.)
• Citation: 3 S.W.2d 459
• Parties: FREY v. STATE.
• Court: Texas Court of Criminal Appeals

3 S.W.2d 459

FREY v.STATE.

(No. 11285.)

Court of Criminal Appeals of Texas.

January 25, 1928.

Rehearing Denied March 14, 1928.

Second Motion for Rehearing Denied April 4, 1928.

Commissioners' Decision.

Appeal from District Court, Gray County; Charles Clements, Judge.

John Frey was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.Affirmed.

Cook & Lewright, Wm. Jarrel Smith, and Cook, Smith & McLynn, all of Pampa, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

Appellant made a motion to quash the indictment, claiming that the grand jury which returned said indictment was illegal The term of court at which appellant was indicted initiated a new district court for Gray county; the Legislature having theretofore created the Eighty-Fourth judicial district.Said term being the first term authorized by the statute after the creation of the district, the presiding judge had had no opportunity of having the grand jury selected by a jury commission at a previous term.On the first day of the term, being uncertain as to the procedure, a jury commission was impaneled, who selected the grand jury for the term.The grand jury thus selected was impaneled on March 8, 1927, the second day of the term.On March 10th, having reached the conclusion that the proper procedure would have been to instruct the sheriff to select the grand jury, said grand jury was finally discharged, and the sheriff was instructed to summon grand jurors.Exercising the discretion vested in him, the sheriff selected the same persons who had constituted the grand jury originally impaneled.The grand jury thus selected were, on March 10th, duly impaneled.On March 11th, said grand jury returned an indictment charging the offense to have been committed by appellant on or about February 18, 1927.Appellant was arrested February 17, 1927.

No arbitrary disregard of the statute relating to the subject of the selection of grand jurors is disclosed by the record.Appellant had been arrested when the grand jury was impaneled and was in a position to challenge the array.Not conceding that the grand jury had been illegally selected, suffice it to say that, under the facts reflected by the record, appellant's remedy was a challenge to the array at the time the court impaneled the grand jury.Powell v. State, 99 Tex. Cr. R. 276, 269 S. W. 443.

Operating under a search warrant, officers searched appellant's hotel and found therein a quantity of whisky, which consisted of one quart, 17 full pints, 3 full half pints, and one half pint about one-fourth full.There was also discovered a tub of empty bottles, which had contained bottled in bond whisky.The whisky was hidden on a sub-floor, which was built under the sills.Drunken men had been arrested around the hotel shortly prior to the search.On the occasion of the search, officers arrested a drunken man who was leaving the hotel.This man had a pint of whisky, which was in a bottle similar to the bottles thereafter discovered in the hotel.The whisky was of the same color, and was apparently of the same grade, as that thereafter discovered in appellant's possession.

The affidavit upon which the search warrant was based was made upon information and belief, and the grounds of belief were not therein exhibited.Appellant lodged appropriate objections against the introduction of the testimony of the officers touching the result of the search.The questions involved may be disposed of by stating that appellant testified that the whisky belonged to him and detailed the manner in which its hiding place had been constructed.Having testified to the same facts as stated by the officers relative to the quantity of whisky he possessed, appellant cannot now claim to have been injured by the testimony of the officers, even if such testimony was improperly admitted.Gonzales v. State(Tex. Cr. App.)299 S. W. 901.

Finding no error, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant files an able and extended motion for rehearing, supported by a brief of authorities and oral argument, showing research and care.He contends that we should have considered and held error the refusal of the court to continue the case.This action of the court was not made the subject of complaint in a bill of exceptions.Without such bill, the matter is not properly before us.Hollis v. State, 9 Tex. App. 646;Trevino v. State, 38 Tex. Cr. R. 64, 41 S. W. 608;Gray v. State, 100 Tex. Cr. R. 195, 272 S. W. 469;Payne v. State, 100 Tex. Cr. R. 241, 272 S. W. 788.

We regard the proposition as too well settled, to call for further discussion at our hands, that objections to testimony are unavailing on appeal, when it appears from the record that the same testimony went before the jury from some other source without objection.McLaughlin v. State(No. 11286)4 S.W.(2d) 54, opinion February 15, 1928;Sifuentes et al. v. State, 5 S.W.(2d) 144, No. 11546, opinion March 7, 1928;Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169.The case last cited refers to many authorities, and the point made there has been uniformly followed.

As we gather from the record — and it seems to be conceded in the motion — the point made by appellant against the legality of the grand jury which indicted him grew out of the fact that the court issued a writ directing the sheriff to summon a grand jury, but did not issue said writ on the first day of the term.It is admitted that the court was newly created and its judge newly appointed; this appearing to be the first sitting of the court after its creation and after the appointment of said judge.Being in some doubt as to how the grand jury should be summoned, and after consultation with others, the trial judge appointed jury commissioners, who drew the grand jury.Two or three days later, and after more investigation, the judge became satisfied he had made a mistake, and he discharged said grand jury and...