Walters v. State , 102 Tex. Crim. 243 ( 1925 )

The appellant was convicted in the District Court of Parker County for receiving and concealing stolen property and his punishment assessed at two years in the penitentiary.

Complaint is made in bill of exception one to the action of the court in having the sheriff to summon a jury for the week out of which a jury was selected for this trial, because it is alleged the appellant was entitled to a trial by a jury selected by the jury commissioners. The trial court qualifies this bill, showing that there were regular juries for the second to fifth weeks inclusive, of the term of court, and this case set for an earlier week of court and when called appellant made a motion for continuance, which was overruled and the case reset without objection. Reset for the seventh week for which there was no regular jury, and that there was no time during a regular jury week that this case could be tried except the first setting. Art. 715, Vernon’s C. C. P. provides, when from any cause there are no regular jurors for the week, the court shall order the sheriff to summon the number of qualified persons necessary from which to select a jury. It appears from the record the court followed this statute, and we are of the opinion there is no error shown in this bill. Branch P. C. SEc. 533, citing Wyatt v. State, 38 Texas Crim. Rep. 258; Bruce v. State, 173 S. W. 301, and many other authorities,

Bill of exceptions to complaint is made to the action of the court in overruling appellant’s motion to quash the indictment, because it is contended same is too vague, indefinite and uncertain.

We have carefully examined said indictment and said bill of exception and are of „the opinion that the indictment is sufficient and meets the requirements of the statutes, and follows the approved form of Wilson’s Criminal Forms, 4 ed. No. 691, p. 350, and Branch’s P. C. Sec. 2530, p. 1364.

Appellant complains in bill of exception sixteen to the jury, while out deliberating and in charge of proper officer going to a fire in town where people had gathered. The court heard the evidence of the jury and all evidence introduced on this issue, and we think correctly overruled the contention of appellant, as there was no showing in said bill of any injury sustained by him in the least.

The statement of facts shows to be made up largely in question and answer form, contrary to Art. 846 Vernon’s C. C. P. and for said reason we are unauthorized to consider same. Knott v. State, 247 S. W. 520; Jacobs v. State, 92 Texas Cr. Rep. 253; James v. State, 262 S. W. 500; Simmons v. State, 261 S. W. 1032. In Jacobs v. State, supra, this court on rehearing by Judge Hawkins, stated, “This is not an open question,” citing many authorities in addition to many authorities cited in the original opinion by Judge Lattimore. Appellant urges several other bills of exceptions to the ruling of the court upon the trial of this case, but with the elimination of the statement of facts show no alleged errors of the trial court that we can consider.

After a careful consideration of the record we are of the opinion that the judgment of the trial court should be affirmed and it is accordingly so ordered.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.