Vasquez v. State

• Decision Date: 23 December 1914
• Docket Number: (No. 3359.)
• Citation: 172 S.W. 225
• Parties: VASQUEZ v. STATE.
• Court: Texas Court of Criminal Appeals

172 S.W. 225

VASQUEZ v. STATE.

(No. 3359.)

Court of Criminal Appeals of Texas.

December 23, 1914.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Leonardo L. Vasquez was convicted of murder, and appeals. Reformed and affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

This is the second appeal in this case, on the former appeal the case having been reversed and remanded. 171 S. W. 1160. On this trial appellant was convicted of murder, and his punishment assessed at 25 years' confinement in the state penitentiary. It is a companion case to that of Serrato (171 S. W. 1133), Gonzalez (171 S. W. 1146, 1149), and other cases, in which the appellants were charged with the murder of Deputy Sheriff Ortiz of Dimmit county.

No statement of facts accompanies the record; consequently many grounds assigned in the motion for a new trial cannot be reviewed by us. The only questions presented in a way we can review the action of the trial court are presented in the three bills of exception copied in the transcript. In the first bill of exception it is complained that the court erred in refusing to quash the indictment on the ground that Eugene Buck, a witness for the state, was a member of the grand jury which returned the bill of indictment against appellant. The record discloses that the grand jury had been impaneled prior to the time the alleged offense had been committed, and the grand jury had been discharged for the term; that when the offense with which appellant is charged was committed, the court reconvened the grand jury. He was authorized to do this by article 423 of the Code of Criminal Procedure. Mr. Buck, having been regularly impaneled as a member of the grand jury for that term, did the fact that he witnessed the offense with which appellant is charged render him incompetent as a grand juror? The oath required to be administered to the grand jury provides that they must present all things which come to their knowledge. We think it incumbent upon all members of the grand jury to report to their fellow members all violations of the law of which they are cognizant, and the fact that the state might use them as a witness in the prosecution of the case does not render them incompetent as grand jurors.

But, aside from this view of the law, the grand jury of Dimmit county indicted appellant; the venue of his case was changed to another county, and the law provides (article 630, Code of Criminal Procedure) that all motions to set aside the indictment, and all special pleas and exceptions, shall be disposed of prior to the time that the change of venue is ordered. This record discloses that all such pleas as appellant desired to enter were presented and overruled before the venue was changed, and this motion to quash the indictment, on the grounds named, would come too late. Vance v. State, 34 Tex. Cr. R. 395, 30 S. W. 792, and cases cited; Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597; Serrato v. State, 171 S. W. 1133, decided at the last term of this court and not yet reported.

In the second bill is presented the question that the judge had no authority to call a special term of his court to try this and other cases. This has been decided so often adversely to appellant's contention we do not deem it necessary to discuss it. Article 94 of the Code of Criminal Procedure; article 1720 of the Revised Civil Statute.

In the third and last bill is presented the question that the names of all qualified jurors in the county were not placed in the wheel from which the venire in this case was drawn. By Acts 30th Leg. (chapter 139, p. 269, Sess. Acts, now chapter 5, tit. 75, Rev. St. 1911) it was provided that in counties containing cities of more than 20,000 population the tax collector, the tax assessor, the county clerk, and the...