Louie Haile v. State , 131 Tex. Crim. 17 ( 1936 )

Conviction for assault to murder; punishment, ten years in the penitentiary.

Appellant offered no testimony. That for the State showed an unprovoked attack upon a peace officer with a knife and a pair of pliers by appellant and his brother, and the infliction of wounds which doubtless would have been fatal but for prompt assistance and treatment. There are six bills of exception, none exhibiting complaints of importance enough to call for extended discussion, save bill No. 1, which sets out that an unauthorized person, — C. G. Dabney, — was present with the grand jury which returned the indictment in this case when they were deliberating and voting upon said indictment. The facts show that Mrs. C. G. Dabney was a citizen of Comanche County, Texas, qualified to sit and serve as a grand juror, but that the name of R. C. Dabney, also a citizen of Comanche County, was written by the grand jury commission in their list as filed with the clerk. Mr. C. G. Dabney was commonly known as Chris Dabney, and there seems to have been some confusion over the matter of initials. Two of the grand jury commissioners testified that Mr. C. G. Dabney was in fact selected by them, and they intended to put his name on the list filed, upon which in fact the name of R. C. Dabney was written. The sheriff summoned Mr. C. G. Dabney, who appeared and was duly impanelled and sworn and acted. This much by the way.

There was no challenge to the array of the grand jury such as is laid down by Art. 358, C. C. P., as the only attack upon the legality of such organization, but if we consider the motion to quash, — the offense here charged not having been committed at the time the grand jury was impanelled, and there being then no occasion for appellant to appear and challenge the array, — we find no merit in such motion. Clearly more than twelve men did not sit on the grand jury, and it being shown that Mr. C. G. Dabney was a qualified grand juror, that he was duly selected by the jury commission, duly examined, impanelled and sworn, these facts would make such grand jury legal, and the further fact of the mistaken entry of the name of R. C. Dabney upon the grand jury list as filed, would in nowise affect the legal status of said grand jury as in fact organized. It would afford this appellant no good ground for his motion to quash.

The argument of the attorney employed to assist in the prosecution was not of such character as to present reversible error.

We have examined the authorities cited by appellant's counsel, namely, Simms v. State, 278 S.W. 220; Powell v. State, 269 S.W. 443; Russell v. State, 242 S.W. 240; King v. State, 234 S.W. 1107, and Woolen v. State, 150 S.W. 1165. The Simms, Russell and Woolen cases, supra, each present wilful disregard of the law directing the method of selecting grand jurors. The Powell and King cases, supra, are not on facts at all similar to those before us, and in our opinion do not support appellant's attack upon the legality of the grand jury.

The judgment is affirmed.

Affirmed.

MORROW, P. J., absent.

ON MOTION FOR REHEARING.