Smith v. State

• Decision Date: 06 February 1924
• Docket Number: (No. 8311.)
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

260 S.W. 602

SMITH v. STATE.

(No. 8311.)

Court of Criminal Appeals of Texas.

February 6, 1924.

Rehearing Denied March 26, 1924.

Appeal from District Court, Freestone County; J. R. Bell, Judge.

Steve Smith was convicted of possessing intoxicating liquor for purposes of sale, and he appeals. Affirmed.

Edwards & French, of Fairfield, for appellant.

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

LATTIMORE, J.

Appellant was convicted in the district court of Freestone county of possessing intoxicating liquor for purposes of sale, and his punishment fixed at two years in the penitentiary.

There are three bills of exception in the record. The first complains of the refusal of appellant's motion to quash the indictment because of various grounds set out, such as the incompetence of the jury commissioners and of the grand jurors. No challenge to the array was made. Neither from the averments of the motion to quash, nor the statement of facts heard in support thereof, nor from the bill of exceptions reserved to the refusal of said motion, is it made to appear that appellant was not under arrest for, or charged with, this offense prior to the time the grand jury was impaneled. It is plain from our statutes and decisions that an attack upon the illegality of the grand jury must ordinarily be made by challenge to the array. Article 409 of our Code of Criminal Procedure says:

"In no other way shall objections to the qualifications and legality of the grand jury be heard."

This is affirmed in Robinson v. State, 92 Tex. Cr. R. 527, 244 S. W. 600. In Staton v. State, 93 Tex. Cr. R. 358, 248 S. W. 358, discussing a similar question, Mr. Justice Hawkins, writing for this court, says:

"The bill fails to show whether appellant was in jail or on bond when the grand jury convened, and fails to present an excuse why, in either event, he could not have exercised the right of challenge in limine provided in article 409 C. C. P."

See Hickox v. State (Tex. Cr. App.) 253 S. W. 823.

While it would seem permissible that one who was not under arrest nor charged with the offense at the time of the convening of the grand jury — and who had no notice that such grand jury would investigate a crime involying him — might make a motion to quash the indictment for some error in the formation of the grand jury, still in such case it must appear from the record that there existed such excuse or reason for not having presented a challenge to the array made necessary by the statute referred to. Appellant not bringing himself within any of the rules excusing him, and not having...