Tyson v. State

• Decision Date: 28 April 1943
• Docket Number: No. 22439.,22439.
• Citation: 171 S.W.2d 496
• Parties: TYSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 496

171 S.W.2d 496

TYSON v. STATE.

No. 22439.

Court of Criminal Appeals of Texas.

April 28, 1943.

Rehearing Denied June 2, 1943.

Appeal from District Court, Blanco County; Raymond Gray, Judge.

Vance Tyson was convicted of assault with intent to murder, and he appeals.

Affirmed.

McKie & Hill, of San Marcos, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for assault with intent to murder Emil Kroll, punishment assessed at two years in the penitentiary,

This is the second time the case has been before us. The opinion on the first appeal will be found reported in 142 Tex.Cr. R. 461, 154 S.W.2d 477.

The questions of law presented do not call for a statement of the facts proven upon the main case. It is sufficient to say the evidence supports the verdict.

Bill of exception number one relates to a motion by appellant to quash the indictment. When the case was called for the present trial the motion to quash was presented based upon the proposition that two persons were on the grand jury which returned the indictment who were related to appellant. Subdivision 3 of Art. 362, C.C.P.1925, makes it a ground for challenge to a proposed particular grand juror if "he is related by consanguinity or affinity to one who has been held to bail or who is in confinement upon a criminal accusation."

The relationship does not disqualify such grand juror, but is only a ground of challenge if timely made.

Article 358, C.C.P.1925, provides that: "Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard." Since the opinion in Carter v. State, 39 Tex.Cr.R. 345, 46 S.W. 236, 48 S.W. 508, decided in 1898, it has been the holding that if an accused had opportunity to challenge at the time the grand jury was impaneled he waived the right to later raise the question, but if he had no such opportunity to challenge in limine he could raise the question by a motion to quash when called upon to plead to the indictment.

The bill of exception reflects the following facts. Appellant had been charged by complaint before a magistrate with the offense of assault with intent to murder. In December, 1940 an examining trial was held. Appellant was released on bond, being bound over to await the action of the grand jury at the next regular term of the district court, the convening time of which was March 24, 1941. However, the district judge called a special term of the district court to convene on January 13, 1941 and impaneled a grand jury which returned the indictment against appellant on January 14, 1941. Neither appellant nor his attorney was notified of the calling of the special term and appellant had no opportunity to challenge any person impaneled on the grand jury at the time it was organized. This case was first tried in March, 1941. A conviction resulted, but upon appeal was reversed and remanded. Upon that trial appellant plead to the indictment without presenting a motion to quash, and in no way challenged the validity of the indictment upon the ground he now urges. After the case was remanded it was again called for trial at the March term, 1942, when for the first time appellant presented the motion to quash the indictment because of relatives on the grand jury.

It is apparent from the explanatory statements embraced in the bill that it was the opinion of the trial court that the motion to quash the indictment came too late, appellant having plead to the indictment at a previous term and gone to trial without raising the question as to the grand jurors. It is appellant's contention that the reversal sent the case back for a trial de novo and that he could raise the question of the grand jurors by motion to quash before pleading to the indictment upon the present trial, although it had not been raised before the first trial. We think the exact question has not been heretofore decided.

It seems clearly to have been the intention of the Legislature by the enactment of Article 358, C.C.P., to put a time limit upon questioning the organization of grand juries. The many cases listed under said article in Note 6, Vernon's Ann. Tex.C.C.P., bear out that such has been the construction placed upon said article by this court. By permitting one who has had no opportunity to challenge upon impanelment of the grand jury to raise the question by motion to quash the indictment should not be held to extend to an accused the right to waive the question when the first opportunity presented itself, and then raise it at a subsequent trial.

It has been held properly, we think, that where no motion has been presented to quash an indictment because of claimed informalities in organizing the grand jury the point can not be raised by motion in arrest of judgment or in the motion for new trial. Estrada v. State, 99 Tex.Cr.R. 140, 268 S.W. 958; Harvey v. State, 108 Tex.Cr.R. 66, 299 S.W. 241; Connelly v. State, 93 Tex.Cr.R. 295, 248 S.W. 340. In the opinion on motion for rehearing in Carter v. State, 39 Tex.Cr.R. 345, 46 S.W. 236, 48 S.W. 508, 510, discussing accused's right to question the formation of the grand jury by motion to quash the indictment this significant language is found: "This was his first opportunity to test this question," etc., indicating, we think, it was the opinion of the court that the point should be raised at the first opportunity. In King v. State, 100 S.W. 387, 388, it was held that the attack on the formation of the grand jury should have been made when it was impaneled, but in the original opinion this statement is found. "The motion to quash was made some 10 months after the return of the indictment, and at a subsequent term of the court," and in the opinion on rehearing the court said: "There were intervening terms of the court between the filing of the indictment and the motion to quash." While the case was not decided on the question of a delayed motion to quash it is evident the fact that there was such delay attracted the attention of the court. We are not unmindful that the King case, supra, was overruled in Conklin v. State, Tex.Cr.App., 162 S.W.2d 416, but upon grounds other than those here adverted to.

There is no doubt that if appellant after his first conviction had attempted to raise the question of the two grand jurors by motion in arrest of judgment or motion for new trial, it would have been too late, he having waived the point in failing to present it by motion to quash the indictment before pleading thereto. Under the statute, Art. 358, C.C.P., and the construction thereof it is clear that an accused having opportunity to challenge the array of grand jurors, or any person thereon at the time of impanelment, and who fails to do so has waived the right to so challenge by motion to quash the indictment. Conceding that appellant had no opportunity to challenge when the grand jury was impaneled, it is certain that he could have done so by motion to quash the indictment at the time of his first trial. Having failed to do so, he waived the point. It would seem inconsistent to hold as appellant insists that he might later at a subsequent term of court and upon another trial assert a right which he had theretofore waived when the opportunity was first presented. We are inclined to the view that the trial court was correct in holding that appellant having waived the right to challenge at the first opportunity when called upon to plead to the indictment on his former trial, that the effort to raise the question on his subsequent trial came too late. This seems to be in keeping with the spirit of Art. 358, C.C.P., and the authorities thereunder.

When called upon to plead to the indictment upon the present trial appellant entered a plea of former jeopardy. This was based upon the idea that when the court overlooked the error in the verdict upon the first trial and received the verdict and discharged the jury it brought into operation the provision of Art. 682, C.C. P., regarding the discharge of a jury without accused's consent where they could not reach a verdict. The jury did return a verdict upon the first trial. It was erroneous and resulted in a reversal. See the opinion in Tyson v. State, 142 Tex.Cr. R. 461, 154 S.W.2d 477. Appellant's contention that former jeopardy arose under the conditions stated appears wholly without merit.

Motion for new trial was filed on September 30 and overruled the same day. In the overruling order appears appellant's notice of appeal. Sentence was pronounced against appellant on the same day and recognizance entered into. On October 2, and during the trial term appellant filed an amended motion for new trial in which he prayed that the former order overruling his motion for new trial be set aside, basing his amended motion on the claim that the jury had received additional evidence since retiring to consider their verdict. As a part of the amended motion appellant requested the court to hear evidence from the jurors and as court was about to adjourn for the term, asked that the term of court be extended in order that the jurors might be heard. On October 3, which was the last day of the term the court did make an order extending the term for 30 days, stating therein: "* * * it being made known to me that the defendant * * * has further matters which he desires to present in said cause * * * said term is hereby extended * * * for the purpose of allowing defendant * * * to present such additional matters * * *". On October 15 the court heard evidence on the issues set up in the amended motion, overruled the same and appellant again entered notice of appeal.

It will be observed that in no motion of appellant is there a direct statement that the former notice of appeal was withdrawn, nor any direct statement in any order of the court that...