Staton v. State, (No. 7077.)

• Decision Date: 31 January 1923
• Docket Number: (No. 7077.)
• Citation: 248 S.W. 356
• Parties: STATON v. STATE.
• Court: Texas Court of Criminal Appeals

248 S.W. 356

STATON v. STATE.

(No. 7077.)

Court of Criminal Appeals of Texas.

January 31, 1923.

Rehearing Denied February 28, 1923.

Appeal from District Court, Titus County; R. T. Wilkinson, Judge.

Murry Staton was convicted of cattle theft and appeals. Affirmed.

Wilkinson & Cook, of Mt. Pleasant, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Appellant was indicted for theft of cattle from A. P. King, W. H., C. G. and Virgil Hughes, who were alleged to be joint owners. Conviction followed, with an assessed punishment of two years in the penitentiary.

A. P. King testified for the state that he owned cattle jointly with the other parties named in the indictment; that of his own knowledge he did not know whether one had been stolen, but if one had been taken it was without his consent. It developed on cross-examination that King was a member of the grand jury which returned the indictment. Appellant filed a motion, requesting permission to withdraw his announcement, and insisted that the indictment should be quashed because King was on the grand jury. The motion seems to be based on the proposition that he should not have been permitted to be present while the grand jury was investigating and voting on the question, but "should have retired and left the matter with the rest of the grand jury." The cases cited by appellant are not in point. They are ones where the district attorney, or some other unauthorized person, was present while the grand jury was "deliberating or voting upon the accusation." The principle would not apply to one who was regularly impaneled as a grand juror. To solve that question it is necessary to have recourse to article 413 of our Code of Criminal Procedure. It will be readily seen from an examination of the articles immediately preceding (390 to 411, inclusive) that the matter urged against the grand juror is not a disqualification. Article 413, C. C. P., provides:

"A challenge to a particular grand juror may be made orally, and for the following causes only."

Subdivision 2:

"That he is the prosecutor upon an accusation against the person making the challenge."

Conceding that King comes within the provision of subdivision 2, and would have been subject to challenge at the instance of appellant, when does the challenge have to be interposed? Article 409, C. C. P., reads:

"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 jail in the county shall, upon his request, be brought into court to make such challenge."

The latest consideration of said article, and the exceptions thereto, was in Robinson v. State (Tex. Cr. App.) 244 S. W. 599. For collation of other authorities, see notes under said article 409 in volume 2, Vernon's Crim Statutes. The bill presenting this question for review fails to bring appellant within any of the exceptions which would excuse him from having challenged the grand jury before impanelment. It is stated in the bill that "the facts are such that this defendant or his attorneys had no way or notice to take advantage of this procedure;" that is, of challenge in limine. The facts are not set out, and the statement appears merely as a conclusion, and as a reason why the court should have considered the motion to quash. It is not a certification by the trial judge of the correctness of the statement. The alleged theft is shown to have been committed in September. The grand jury which returned the indictment convened in January following. 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, supra.

W. H. Hughes testified substantially that in May, 1921, he purchased in a trade the stolen animal from appellant. Appellant had been milking the mother of the yearling. The yearling run in the pasture on what was known as the old Kelly place. Some time in September, from a source undisclosed in the record, Hughes received information on Monday that this animal had been killed on the Friday preceding. As a result of this information he found the head of the animal in a pool of water on the Kelly place. He also received information that one Less Holder had peddled some beef on the Saturday before. Hughes on this same day, Monday, asked appellant if he knew anything about the killing of the yearling, which appellant at that time denied. On Tuesday night, however, appellant went to the home of Hughes and then stated that he had not told the truth about the killing of the animal in the prior conversation, but admitted that he and Less Holder had killed it, and said if Holder would not pay for it he (appellant) would if he (Hughes) would stop the prosecution. In this same conversation appellant told Hughes he thought Holder had bought the yearling, but gave no reason for so thinking. Appellant admitted in this conversation that he knew the animal they had killed was the one he had traded to the witness. It was in proof that B. Brown, Raymond McCullor, Less Holder, Welton Kelly, and appellant were all present at the time the animal was killed. Holder had employed Brown and Kelly to assist in killing the animal, and was to pay them $1 each for their services. Holder secured the implements with which to do the killing and the knives necessary to dress the animal. He, with Brown and Kelly, proceeded in the direction of the Kelly place; they met appellant and Raymond McCullor. Appellant called Holder off from the others, and had a private conversation with him. Brown and others of the party heard Holder ask appellant if he had the yearling "penned," and heard appellant reply, "Yes." After the animal was killed some of the witnesses claimed that Holder and Raymond McCullor took the head and entrails off somewhere south of the house, at which time appellant was quartering the beef. Brown and Kelly disclaimed knowledge that the animal was stolen at the time it was killed, and claimed to have been assisting in the butchering of the animal at the request of Holder. After the state had developed the foregoing testimony appellant offered as a witness one McKnight, who claimed to have seen Holder penning the yearling in question on the Kelly place. It was in evidence from the witness Tew that he had seen Holder driving a yearling in the Hughes pasture about the time the animal is alleged to have been killed. It was shown by the state, on cross-examination of these two witnesses, that they were each under indictment for felonies themselves. By one Price appellant introduced evidence to the effect that on Sunday night after the killing of the animal on Friday he saw Holder going down through the old Kelly field on horseback, with something in a sack which witness claims to have seen him put in a pool of water. Appellant himself did not testify. The state placed upon the witness stand in rebuttal Raymond McCullor, who testified that on the Friday afternoon before the animal was killed about dark of that day appellant got him (witness) to go with him and help pen the animal in question; that they afterwards met Holder and the other parties, and went back and killed and butchered the animal. This witness was staying at appellant's at the time. He says that on Sunday afternoon he and appellant got the head of the yearling and threw it in the pool of water where it was found. One witness testified that Holder took the hide off some distance from where the animal was killed, saying it was not fit to sell, as it had been cut up too much in skinning. This hide was found in a branch somewhere near the place the animal was butchered. The deputy sheriff testified that after...