260 S.W. 602


SMITH
v.
STATE.


(No. 8311.)


Court of Criminal Appeals of Texas.
February 6, 1924.
Rehearing Denied March 26, 1924.

        Appeal from District Court, Freestone County; J. R. Bell, Judge.

        Steve Smith was convicted of possessing intoxicating liquor for purposes of sale, 
and he appeals. Affirmed.

        Edwards & French, of Fairfield, for appellant.

        Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, 
for the State.

        LATTIMORE, J.

        Appellant was convicted in the district court of Freestone county of possessing 
intoxicating liquor for purposes of sale, and his punishment fixed at two years in the 
penitentiary.

        There are three bills of exception in the record. The first complains of the refusal of 
appellant's motion to quash the indictment because of various grounds set out, such as the 
incompetence of the jury commissioners and of the grand jurors. No challenge to the 
array was made. Neither from the averments of the motion to quash, nor the statement of 
facts heard in support thereof, nor from the bill of exceptions reserved to the refusal of 
said motion, is it made to appear that appellant was not under arrest for, or charged with, 
this offense prior to the time the grand jury was impaneled. It is plain from our statutes 
and decisions that an attack upon the illegality of the grand jury must ordinarily be made 
by challenge to the array. Article 409 of our Code of Criminal Procedure says:

        "In no other way shall objections to the qualifications and legality of the grand jury 
be heard."

        This is affirmed Robinson v. State, 92 Tex. Cr. R. 527, 244 S. W. 600. Staton v. 
State, 93 Tex. Cr. R. 358, 248 S. W. 358, discussing a similar question, Mr. Justice 
Hawkins, writing for this court, says:

        "The bill fails to show whether appellant was in jail or on bond when the grand jury 
convened, and fails to present an excuse why, in either event, he could not have exercised 
the right of challenge in limine provided in article 409 C. C. P."

        See Hickox v. State (Tex. Cr. App.) 253 S. W. 823.

        While it would seem permissible that one who was not under arrest nor charged with 
the offense at the time of the convening of the grand jury — and who had no notice that 
such grand jury would investigate a crime involying him — might make a motion to 
quash the indictment for some error in the formation of the grand jury, still in such case it 
must appear from the record that there existed such excuse or reason for not having 
presented a challenge to the array made necessary by the statute referred to. Appellant not 
bringing himself within any of the rules excusing him, and not having challenged the

Page 603

array as required by statute, the motion to quash will not be considered.

        Appellant's application for continuance shows no diligence, and, besides, same was 
sworn to before his own attorney, which is forbidden. Garza v. State, 65 Tex. Cr. R. 476, 
145 S. W. 591; Hogan v. State, 66 Tex. Cr. R. 498, 147 S. W. 871.

        The other bill of exceptions complains of the admission in evidence of appellant's 
confession, objection to which was made on the ground that it was not voluntary. 
Evidence was heard by the trial judge in support of this objection, which evidence 
appears in the record, and in our opinion same entirely negatives the truth of the 
objections made to the confession.

        The evidence appearing amply sufficient to support the conclusion of guilt, and it 
appearing that appellant has been accorded a fair and impartial trial under the law, the 
judgment of the trial court will be affirmed.


On Motion for Rehearing.

        The matters raised in appellant's motion for rehearing were fully considered and 
decided adversely to him in Mose Bryant v. State (No. 8303) 260 S. W. 598, opinion 
handed down by this court February 20, 1924, and motion for rehearing adversely 
decided on this day. The questions involved in that case and those in the instant case are 
identical. The only proposition involved in this motion being that considered, discussed, 
and ruled upon in the Bryant Case, supra, there is no necessity for further writing.

        Appellant's motion for rehearing is overruled.