Woods v. State

• Decision Date: 28 November 1888
• Court: Texas Court of Appeals
• Parties: WOODS <I>v.</I> STATE.

10 S.W. 108

WOODS

v. STATE.

Court of Appeals of Texas.

November 28, 1888.

Appeal from district court, Williamson county; J. C. TOWNES, Judge.

Defendant, Bud Woods, was convicted of the larceny of a horse, and he appeals. The indictment alleged that the horse was the property of one Robinson, but had been estrayed by one Ash, who placed it in the possession of one Clifton, to be held for Ash and the owner, and that it was taken from the possession of Clifton.

Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Appellant interposed a plea in abatement of the indictment, upon the alleged disqualification and incompetency of one of the grand jurors who presented the bill; the ground of disqualification and incompetency being that he had, before sitting on said jury, been convicted of a felony, (Code Crim. Proc. art. 358, subd. 5,) and had not been restored to competency by pardon or otherwise.

Our statute provides that "any person, before the grand jury have 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." Code Crim. Proc. art. 377.

Just after the adoption of our Code of Criminal Procedure, our supreme court, in the case of State v. Vahl, 20 Tex. 779, held, in effect, that the provision above quoted abrogated the common-law right, or the right theretofore existing, to attack the indictment on objection to the competency of the grand jurors by plea in abatement, and that the objections to such jurors could only be taken by challenge at the time of the organization of that body.

In Hudson v. State, 40 Tex. 12, it was held that the objection that the grand jury was not legally constituted could not be availed of by motion in arrest of judgment, and it was further said in that case that "a challenge is not simply one mode of reaching the objection, but the statute declares, in express terms, that the objection shall be made in no other way."

In Owens v. State, 25 Tex. App. 552, 8 S. W. Rep. 658, where a similar question to the one now before us was raised, we said: "A plea in abatement to an indictment is not, technically speaking, provided for in our Code of Criminal Procedure. There are two grounds, and only two, mentioned in our Code, as sufficient on motion to set aside an indictment. Code Crim. Proc. art. 523. Independently of these two grounds, jeopardy and want of jurisdiction are the only other grounds known by which to avoid and vacate an indictment after its presentment."

Appellant's counsel contends and insists that the question he raises is necessarily a jurisdictional one, because, if it should appear on proofs of his plea that the juror was incompetent, then there were in fact only 11 grand jurors organized legally; and that, the indictment being found by a less number of grand jurors than are required by the constitution and laws, such indictment was a nullity, and would not support jurisdiction for trial and conviction. Lott v. State, 18 Tex. App. 627; Smith v. State, 19 Tex. App. 95. Suppose we concede the correctness of this position, then, as to this particular case, did the court err in overruling the plea in abatement, if treated as one to the jurisdiction? We think not. The defendant's bill of exceptions, taken to the ruling of the court, sets out all of the evidence adduced in support of the plea, but does not set forth the indictment upon which the grand juror had been tried, and there is no positive proof that he was tried and convicted of a felony; and such fact, if a fact, is not made to appear clearly, but, if shown at all, is only made to appear very dimly and inferentially. Neither the verdict nor judgment of conviction shows affirmatively that the grand juror had been tried and convicted of a felony. The plea was not supported by the evidence, and it was not error to overrule it, even if such a plea could have been interposed.

Instead of a plea in abatement, it occurs to us that defendant might, perhaps properly, under the facts contended for, have moved to set aside the indictment in this case for the reason that "a person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or were voting upon the same." This ground for setting aside an indictment is specially provided for by subdivision 2 of article 523 of the Code of Criminal Procedure, and under it defendant might have presented the question raised;...