Jackson v. State

• Decision Date: 01 January 1854
• Parties: E. S. JACKSON v. THE STATE.
• Court: Texas Supreme Court

11 Tex. 261

E. S. JACKSON

v.THE STATE.

Supreme Court of Texas.

1854.

Where the defendant pleaded in abatement, that the name of M. B. Browning, the foreman of the grand jury which preferred the indictment, did not appear upon the jury book of the county, nor upon the venire facias, and the court below heard evidence to the effect that the foreman of the grand jury whose name appeared on the list of grand jurors as W. B. Browning, but whose real name was Mason B. Browning, was also known and sometimes called by the name of W. B. Browning, and thereupon caused the record to be amended by inserting after that name and under an alias dictus, the true name of the juror, it was held that there was no error.

A plea in abatement, that one of the grand jurors (naming him), was not a freeholder in the State nor a house-holder in the county is good.

Appeal from Brazoria. The appellant pleaded in abatement, to an indictment preferred against him, that the name of M. B. Browning, the foreman of the grand jury which preferred the indictment, did not appear upon the jury book of the county, nor upon the venire facias; and that Thomas H. Hinds, another of the grand jurors, was not a freeholder in the State, or a house-holder in the county. The Court heard evidence to the effect that the foreman of the grand jury, whose name appeared in the list of jurors as W. B. Browning, but whose real name was Mason B. Browning, was also known and sometimes called by the name of W. B. Browning; and thereupon caused the record to be amended by inserting after that name, and under an alias dictus, the true name of the juror.

There was a demurrer to the plea in abatement, which the Court sustained. The defendant was convicted and appealed; and the ruling of the Court, in permitting the amendment of the record, and in sustaining the demurrer to the plea in abatement, was assigned as error.

P. McGreal, for appellant.

Attorney General, for appellee.

WHEELER, J.

We entertain no doubt of the propriety of making the amendment in the entry of the name of the foreman of the grand jury; if, indeed, the record, in this respect, required amendment. At most, there was a mistake only in the initial of the Christian name of the juror; and this, doubtless, was the proper subject of amendment. It is not perceived that the correction of this mistake can, in any way, have operated to the prejudice of the defendant, or that he can have any cause of complaint of the ruling of the Court, in this particular.

The plea in abatement averred the want of the requisite qualification in another of the grand jury: and in the case of Foster v. The State (9 Tex. R., 65), it was considered that the incompetency of a grand juror will be fatal to the indictment; and that the want of qualification, which renders him incompetent, may be pleaded in abatement. If this opinion is correct, it follows that ...