Lacy v. State

• Decision Date: 15 June 1892
• Citation: 19 S.W. 896
• Parties: LACY v. STATE.
• Court: Texas Court of Appeals

19 S.W. 896

LACY v. STATE.

Court of Appeals of Texas.

June 15, 1892.

Appeal from Wharton county court.

Hubbard Lacy was convicted of horse theft, and appeals. Reversed.

John E. Linn and Y. C. Burkhart, for appellant. R. H. Harrison, Asst. Atty. Gen., for the State.

SIMKINS, J.

Defendant was indicted for horse theft in Matagorda county, the venue changed by agreement to Wharton county, where the trial resulted in a conviction, and his punishment assessed at five years in the penitentiary. There are three questions that need to be considered in this case.

1. The defendant objected to the indictment on the ground that one of the grand jurors was an alien, and was unauthorized to sit on the grand jury and participate in the proceedings, and that he had a right to raise this objection, under article 523, Code Crim. Proc. The objection goes simply to the qualification of the grand juror, and was correctly overruled, upon wise principles of public policy. The statute limits the right to set aside an indictment to a few specified grounds prescribed in article 523, Code Crim. Proc., and an objection to the want of qualification of a grand juror, after an indictment found, cannot be entertained. Owens' Case, 25 Tex. App. 555, 8 S. W. Rep. 658. In Woods' Case, 26 Tex. App. 490, 10 S. W. Rep. 108, where the plea in abatement to the indictment set up the fact that one of the grand jurors was a convicted felon, there is an intimation that the defendant might move to set aside the indictment on the ground that a person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant or were voting on the same. Code Crim. Proc. art. 523, subd. 2. Defendant's motion in the case at bar was upon this ground. But this was declared to be mere dictum in Doss' Case, 28 Tex. App. 510, 13 S. W. Rep. 788, and article 523, subd. 2, was held not to apply to persons who were impaneled as grand jurors.

2. The defendant complains of the charge of the court in its second paragraph, to the effect "that if the mare was Baxter's property, and if defendant gave a reasonable account of his possession, showing such possession to be honest, such account must be taken as true, until overcome by evidence satisfactory to the jury, beyond any reasonable doubt, that the possession was fraudulent." This charge was error, and was properly excepted to. This court, by repeated decisions, has held that if defendant, in possession of stolen property, give an explanation of his possession that is natural, reasonable, and probably true, it then devolves on the state to prove that the explanation is false. Neither is it necessary for defendant to show that this possession was honest. On the contrary, his possession may be dishonest and fraudulent, and his explanation may so show, and yet defendant may not be guilty of...