Powell v. State

• Decision Date: 19 November 1924
• Docket Number: (No. 8585.)
• Citation: 269 S.W. 443
• Parties: POWELL v. STATE.
• Court: Texas Court of Criminal Appeals

269 S.W. 443

POWELL v.STATE.

(No. 8585.)

Court of Criminal Appeals of Texas.

November 19, 1924.

Appeal Dismissed February 18, 1925.

Appeal from District Court, Comanche County; J. R. McClellan, Judge.

Arnold Powell was convicted of murder, and he appeals.Appeal dismissed.

T. R. Mears and J. D. Brown, Jr., both of Gatesville, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Conviction is for murder, with punishment assessed at confinement in the penitentiary for life.

Appellant was charged with the murder of R. A. Jackson.Deceased had a small picture show outfit, and traveled in a Ford car, going to small places and communities in the country, putting on shows at schoolhouses and other places where he could obtain permission.About June 1st deceased was at Belcherville in Montague county, at which time he was traveling alone, and at that point made arrangements with appellant to travel with him and assist him in the operation of his show.Appellant was to receive as compensation $20 or $25 per month and his expenses.After visiting a number of small places in west Texas, the two parties arrived at Purmela, a village in Coryell county.There was no hotel at this place, and appellant and deceased secured a room at the private residence of Mr. and Mrs. Hagan.On Saturday morning appellant and deceased went from Purmela to the small town of Pearl in the same county to make arrangements to show there.They returned to Purmela and put on their show Saturday night, and early Sunday morning left with the picture show outfit for the town of Pearl.The road traveled by them led through various pastures, crossing Cowhouse creek at what is known as the Bertrand crossing.The body of deceased was discovered on Monday at this crossing.The body had been dragged from a point where blood was found upon the rocks some distance, and was hidden in the weeds and undergrowth.The car in which they were traveling was traced to the city of Waco, where it had been abandoned by appellant, and some $19 in money belonging to deceased had been appropriated by him.The pockets of deceased's clothing had been turned inside out.Appellant defended on the ground that just as they approached the crossing where the body was found they discovered a flat casing and stopped to repair it; that appellant made some complaint because deceased had not secured the proper tools to make the repairs, and that in the conversation which ensued deceased accused appellant of stealing money from him; that in the quarrel which resulted from this accusation deceased struck appellant, to which he replied with a blow with his fist; that deceased then started to pick up the jack which had been removed from under the car, and appellant, believing that deceased intended to strike him with the jack, picked up a rock, and struck deceased on the head, which resulted in his death; that, becoming frightened and not knowing what to do, he had concealed the body, driven the car to Waco, where he abandoned it, and appropriated the money amounting to $19 and some few cents which was in a shot sack on the front seat of the car.He denied having rifled deceased's pockets after the killing.Appellant went to Oklahoma, where he enlisted in the army.He was transferred to San Antonio, at which point he was arrested about two months after the killing.We do not think a more extended statement of the facts called for.

The matter complained of in bill of exception No. 1 arises upon motion to quash the indictment.Prior to an act of the Thirty-Eighth Legislaturethe district court of Coryell county convened regularly on the 2d Monday in January and July of each year.During the session of the Thirty-Eighth Legislaturebills were introduced in both the Senate and House providing that there should be three terms of district court in Coryell county which should convene on the first Monday in January, May, and September.The Senate bill passed both Houses, and went into the hands of the Governor.Some dissatisfaction having arisen with reference to the change in the terms of court, the Governor, at the request of the author of the bill, vetoed it.At the January term of court under the then existing law the district judge appointed jury commissioners which selected grand jurors for the term of court which was to convene in July.At the proper time the clerk of said court opened the list of grand jurors, and they were summoned.The judge regularly convened the July term and impaneled a grand jury.After court had been in session for a week, it was ascertained that in the closing hours of the Thirty-Eighth Legislature the House bill providing for a change in the court in Coryell county had been passed, concurred in by the Senate, gone to the Governor, and had by him been transmitted to the secretary of state, and had become a law without the Governor's signature.Neither the district judge nor any officers of the court knew that this had happened, and were not advised that a law had gone into effect which abrogated the July term of court until after the judge had attempted to hold that term for a week.When notice of these matters came to the judge, he, believing that all acts undertaken to be done at such July term were invalid, discharged the grand jury, directed the clerk to reseal their names and to open the resealed envelope at the proper time and have them summoned for the September term of court, which was the next regular term after said new law became effective.The purported July term of court was discontinued, and court was regularly convened on the first Monday in September under the provisions of the new law.The grand jurors, having been resummoned for that term, were impaneled.It was this grand jury which returned the bill of indictment against appellant, and for the reasons heretofore stated he sought to attack the legality of said grand jury by motion to quash the indictment.That a grand jury composed of 12 men had been impaneled at the September term and functioned as a grand jury is not questioned.The attack goes to the organization and the manner of selecting as disclosed from the foregoing statement.In Newman v. State, 43 Tex. 525, the court, speaking through Chief Justice Roberts, uses this language:

"It seems to be the design of our Code to cut off all objections to the organization of a grand jury unless they are made in the challenges allowed at the time of its organization, or come strictly under the motion allowed to set aside the indictment after it is found by the grand jury."

Prior to the announcement in this case the principle had been given effect in State v. Vahl, 20 Tex. 779;Johnson v. State, 33 Tex. 570;Hudson v. State, 40 Tex. 12.Other cases will be found collated in the notes under article 409, of our Code of Criminal Procedure(Vernon's Ann. CodeCr. Proc. 1916), among them being Doss v. State, 28 Tex. App. 506, 13 S. W. 788;Reed v. State, 1 Tex. App. 1.The question came up in Kemp v. State, 11 Tex. App. 174.The attack upon the indictment in that case was based upon the following grounds: That the persons composing the grand jury were not selected by the jury commissioners for the term of court at which they found the indictment; that the list was not certified by the jury commissioners as required by law; that the envelope which contained the list was not properly indorsed; that the clerk had opened the envelope more than 30 days prior to the meeting of court; that the grand jury was summoned by a person unauthorized by law; and that one member of the grand jury was one of the state's principal witnesses in the prosecution against accused.The plea against the indictment was overruled.We quote from the opinion in the Kemp Case, inserting in brackets, after the numbers of the articles referred to in that opinion, the present number of the same articles:

"Aside from the statement appended by the presiding judge to the bill of exceptions to his ruling on the plea, which appears to explain in a very satisfactory manner the objection to the grand jury, the opening of the envelope, and the official capacity of the officer who summoned the grand jury, and the like, we are of opinion the correctness of the rulings of the judge on the plea must be determined and stand or fall by a proper interpretation and application of several articles of our Code of Procedure as we find them to be since the last revision, and which were in force at the time of the trial on the plea in question.By article 376[now 408] it is provided that, when twelve qualified jurors are found to be present, the court shall proceed to impanel them as a grand jury, unless a challenge is made, which may be to the array or to any particular individual presented to serve as a grand juror.The next succeeding article directs the time and manner of making a challenge, and succeeding articles prescribe causes of challenge to the array or to an individual grand juror.

"In order that we may be fully understood we quote the language of the several articles:

"`Art. 377[now 409].Any person, before the grand jury has been impaneled, may challenge the array of jurors or any person presented as a grand juror, and in no other way shall objections to the qualifications and legality of the grand jury be heard.Any person confined in the jail of the county shall, upon his request, be brought into court to make such challenge.

"`Art. 378[now 410].By the array of grand jurors is meant the whole body of persons summoned to serve as such, before they have been impaneled.

"`Art. 379[now 411].A grand juror is said to be impaneled after his qualifications have been tried and he has been sworn.By the word "panel" is meant the whole body of grand jurors.

"`Art. 380[now 412].A challenge to the array shall be in writing, and for these causes only: 1.That the persons summoned as grand jurors...