
    MILLIKIN v. STATE.
    (No. 10862.)
    Court of Criminal Appeals of Texas.
    May 11, 1927.
    Rehearing Denied June 15, 1927.
    1. Grand jury <&wkey;I2 — Grand jury, reassembled after discharge for term with absentee’s place filled by one newly summoned, may return valid indictment under statute (Code Cr. Proc. 1925, art. 372).
    Grand jury discharged for the term, not recessed, may be reassembled during the term, and, with the panel completed by summoning and placing thereon a juror in place of an absentee, return a valid indictment after motion to quash a former indictment has been sustained, under the express provisions of Code Cr. Proc. 1925, art. 372.
    2. Criminal law <&wkey;l 166|/2 (5) — Court’s changing venue on own motion renders harmless error, if any, in prior refusal to quash special venire.
    Court’s action in changing venue of a criminal case on its own motion renders immaterial the error, if any, in prior refusal to quash the special venire presented to defendant.
    3. Criminal law <&wkey;>649(l) — Refusal to postpone trial to permit investigation of duly served list of veniremen held proper, where defendant’s counsel were assisted in passing thereon by local attorney.
    Refusal to postpone murder trial to permit accused to investigate special venire tendered to him in county to which venue had been changed held not error, where list of veniremen was served in time and a local practicing attorney of 30 years’ residence in county assisted defendant’s counsel in passing thereon.
    4. Criminal law <&wkey; 142 — Refusal to issue writ of certiorari for district clerk of county of original venue to perfect record held proper, where ciefk appeared with records and testified.
    Refusal to issue writ of certiorari to clerk of the district court of the county from which change of venue had been taken, to perfect record, held proper, where on motion being presented that clerk was caused to appear with all pertinent records and testified that the motion for certiorari contained a correct and complete transcript.
    5. Criminal law <&wkey;649(I) — Refusing 2-day continuance to investigate talesmen held proper, where 5 hours and 15 minutes was granted and local counsel aided in investigation.
    Refusing 2-day continuance to permit defendant to investigate talesmen summoned after special venire was exhausted held proper, where defendant was granted 5 hours and 15 minutes therefor, and his counsel were assisted by a local attorney in making the investigation.
    6. Homicide <&wkey;l74(l) — Evidence of contents of book taken from accused containing name of border town held not immaterial, where defendant after offense had said he ought to be on border.
    Evidence of contents of book taken from accused, containing name of town near Rio Grande border, held admissible against objection to materiality where state’s witness testified that accused on morning after the murder said he ought to be on border at that time.
    7. Homicide <&wkey;>l74(6) — Doctor’s testimony that spots on defendant’s pistol showed blood, without proof it was human blood', held admissible.
    Doctor’s testimony that on examining under miscroscope spots found on defendant’s pistol he discovered “red blood cells” held admissible, failure to show that the blood was human going to its weight rather than competency.
    8. Criminal law <&wkey;730(4)— District attorney’s argument that he withdrew objection to permit accused to have full rights held not error, where he had withdrawn argument and court admonished.
    District attorney’s argument to jury that he had withdrawn objection to argument by defendant’s counsel because the state, asking the death penalty, wanted the defendant to have all rights, held not error, where both conditions existed that district attorney had withdrawn an objection and the court admonished the jury to disregard the argument.
    9. Homicide <&wkey;28&wkey;Circumstantial evidence held to present case for jury, where death penalty for murder was assessed.
    Circumstantial evidence held to make issue of guilt for jury in prosecution for murder, where punishment was assessed at death.
    
      10. Criminal law <@=»l 159(2) — Jury’s findings within its province will not be disturbed if supported by evidence.
    It is the province of the jury to pass on the credibility of witnesses and the weight to be given their testimony, and with its findings the appellate court may not interfere if there is evidence to authorize them.
    On Motion for Rehearing.
    11. Grand jury <&wkey;>3l — Court reassembling grand jury under statute need not give three days’ notice required under section relating to assembly at beginning of term (Code Cr. Proc. 1925, arts. 345, 372).
    Where the court during the term reassembles a grand jury which has been discharged for the term, it may immediately impanel other jurors in place of absentees, since Code Cr. Proc. 1925, art. 372, expressly authorizing the court so to reassemble and complete the jury, is silent as to method and notice therefor; article 345 requiring three days’ notice prior to first day of the term not being applicable.
    Commissioners’ Decision.
    Appeal from District Court, Caldwell Comity; M. C. Jeffrey, Judge.
    A. Y. Millikin, alias Avery V. Jacks, alias W. A. Coatz, was convicted of murder, and he appeals.
    Affirmed.
    Conger & Conger, of San Antonio, for appellant.
    Fred L. Blundell, Dist. Atty., and Tom Gambrell, Co. Atty., both of Lockhart, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of murder and his punishment assessed at death.

The record discloses that' the appellant was charged by indictment in the district court of Comal county with murdering Virginia Petty by shooting her with a gun on or about the 22d day of May, 1926; that the district judge of said county, upon his own motion, changed the venue from Comal county to Caldwell county. We infer from the record that it was the contention of the state that deceased, at the instance of appellant, went with him in her automobile from the city of San Antonio to New Braunfels, and that the appellant, on the bank of the river in or near the city of New Braunfels, after assaulting the deceased criminally, shot her and then stole her diamond ring and purse.

The appellant failed to testify' in his own behalf and introduced only one witness, Paula Nelson, who testified that a man registered under the name of A. V. Millikin at the Plaza Hotel in New Braunfels.on May 22, 1926, the date of the alleged homicide, about 11 o’clock at night, and requested that he be called at 4:30 or 5 the following morning.

Briefly stated, the testimony relied upon by the state for a conviction was to the effect that prior to the date of the alleged homicide the appellant was apparently negotiating with deceased, through a real estate firm, for the acquisition, either by purchase or trade, of her residence in the city of San Antonio; that on the morning of the alleged homicide appellant and deceased met at said real estate office for the purpose of closing the trade; that in the afternoon appellant communicated with deceased from said office over the telephone; and that appellant and deceased met about 5 o’clock in the afternoon and went in deceased’s car’ from San Antonio to New Braunfels. The state’s witness Givens testified that he served appellant and deceased at a New Braunfels café about 7 p. m., and that at said time, according to his recollection, deceased was wearing a ring and carrying a purse or hand bag of some kind. A car similar to that owned by deceased was seen on the streets of New Braunfels about 9 p. m. going in the direction of the river, where deceased’s body was discovered on the following morning. Other witnesses testified for the state to the effect that about 11 p. m. on said night they heard the report of a gun in the direction of where deceased’s body was subsequently found, and that later in the night appellant called at the house of his relative, Mrs. De Loach, and sought aid in getting his automobile started, but that he was unsuccessful owing to the fact that his relative and her husband had gone to the picture show. The state’s witnesses further testified that after hearing the gun report, and at intervals thereafter, they heard an automobile “buzzing” as if an attempt was being made to start it. Additional testimony was introduced by the state showing that on the following morning, about 6 o’clock, the appellant again appeared at the home of Mrs. De Loach seeking assistance in getting his car started, and finally secured the assistance of a young man by the name of Owens, who went with appellant to the car, which was in close proximity to the place where deceased’s body was afterwards found. Owens started the car for appellant, and was informed by him that he “should have gotten away from there the night before and was due to be on the border.” Owens also testified that appellant appeared to be nervous and excited at this time. The appellant was seen in San Antonio about 8 or 8:30 on the morning of May 23d; he drove deceased’s car into her garage and walked rapidly away from the premises. Mrs. Sampson, a witness for the state, testified that she took breakfast with- appellant in San Antonio on the morning of May 23d, at his invitation, and drove with him into the country in her car, during which time appellant was armed with a pistol and had in his possession a lady’s diamond ring. The witness further testified that appellant insisted that she drive upon streets and roads which were not so public, and appeared to be very nervous. She also testified that she and appellant spent the night together in a San Antonio hotel, and that the landlady, before they arose on the following morning, informed appellant that the officers were inquiring for him, whereupon appellant dressed hurriedly and left the hotel, which was the last time she saw him until the day of his arrest, a week after the alleged homicide. Additional testimony was introduced by the state to the effect that appellant, a day or two after the alleged homicide, attempted to pawn for $200 a lady’s diamond ring worth from $1,200 to $1,400, but when identification was demanded he left and did not return. On the morning of May 23, 1926, deceased’s body was found upon the banks of the river in or near the city of New Braunfels. Her clothes were torn in front, the print of teeth could he seen on her breast, and she had been shot in the back of the head with a small caliber pistol or gun, which had been fired at close range and left powder burns on her body. There was a dark circle around one of her fingers on the left hand, such as would be made by a ring, and there were scratches on said finger. No purse was found near the body of deceased. The appellant was arrested on May 29th, a week after the alleged homicide, by the officers in the city of San Antonio, and a 38-caliber pistol was taken from his person at said time. On the handle of this weapon were certain specks which, it was learned upon analysis, had been made by blood. There was also taken from him at said time a book containing references to certain towns between San Antonio and'the Bio Grande border. This is a statement of practically all the salient facts introduced in evidence.

The record, contains eight bills of exception. In bill No. 1 appellant complains of the action of the court in refusing to quash the indictment, it being alleged that said indictment was not found, returned, and presented into court by a legally constituted grand jury. It appears from the bill that after an indictment had been returned by the grand jury in Gomal county, and after .the court in said county had discharged the grand jury for the term and this case had been called for trial, appellant’s counsel moved to quash said indictment, which motion was sustained by the court. On the same day, in the evening thereof, the court issued a writ commanding the sheriff to reassemble the grand jury on the following morning. The record shows that the sheriff served all the grand jurors and that on the following morning, in response to said service, all of the grand jurors except one appeared in open court. The judge completed the grand jury by summoning and placing! thereon one Walter Wiedner. It is the contention of the appellant that by reason of the court’s action in placing the said Wied-ner on the grand jury in lieu of the juror who failed to appear, this constituted an illegal grand jury, which rendered the instant indictment void. After a careful examination of the authorities on this question, including those cited by appellant and those relied upon by the state, we are not in accord with this contention and believe that the court was fully authorized, under the facts in this case, to complete the grand jury by adding thereto the said juror, Wiedner. Article 372, G. O. P. 1925, is as follows:

“A grand jury discharged by the court for the term may be reassembled by the court at any time during the term. If one or more of them fail to reassemble, the court may complete the panel by impaneling other men in their stead in accordance with the rules provided in this chapter for completing the grand jury in the first instance.”

This article, which clearly covers the facts in the instant case, has been upheld by this court in Trevinio v. State, 27 Tex. App. 372, 11 S. W. 447; Matthews v. State, 42 Tex. Cr. R. 31, 58 S. W. 86; Ex parte Love, 49 Tex. Cr. R. 475, 93 S. W. 551; Leech v. State, 63 Tex. Cr. R. 339, 139 S. W. 1147; and Wright v. State, 86 Tex. Cr. R. 434, 217 S. W. 152. A distinction has been clearly drawn by this court between a situation where the grand jury has been discharged for the term and reassembled at the same term and that in which the grand jury has only been recessed during the term and not discharged. In the former instance it is held that the court has a right to complete the panel when some of the jurors fail, to reassemble, while in the latter case, where the grand jm*y has only been recessed, this court holds that the trial court is without authority to complete the panel in the event any of the jurors fail to appear at the end of said recess. This, in our opinion, is due to the fact that in the first situation article 372, O. O. P., gives the trial court such authority, whereas in the latter situation there is no statutory provision authorizing 'a completion of the panel under such circumstances. There was therefore no error in the action of the court in reassembling the grand jury and adding the juror, Wiedner, thereto, under the facts above stated.

In bill of exception No. 2 appellant complains of the refusal of the court to sustain his motion to quash the special venire presented to him in the district court of Comal county on account of alleged irregularities in selecting said special venire. This bill involves the method and manner of selecting a special venire in Comal county, all of which occurred prior to the change of venue by the court to Caldwell county. It appears that the court, after overruling appellant’s motion to quash the venire, attempted to get a jury in Comal county and discovered that a fair trial could not be obtained, whereupon he changed the venue on his own motion to Caldwell county. The court’s action in changing the venue to Caldwell county passes this question out of the case.

Bill No. 3 complains of the action of the court in refusing to grant appellant’s motion to postpone the case for two days in order to give him time to investigate the special venire summoned and tendered to him for the purpose of selecting a jury in Caldwell county, it being contended that the appellant and his attorneys were strangers in Caldwell county and needed this time to familiarize themselves with -said venire, so that they might intelligently make the necessary challenges thereto. The court, in qualifying this bill, copies from an affidavit made by Hon. O. F. Richards, a practicing attorney at Lockhart, and attached to the state’s reply to appellant’s motion for new trial, to the effect that he had lived in Caldwell county for 30 years and was well acquainted with the people of said county, and that he assisted appellant’s attorneys in passing upon the venire and gave to them the full benefit of his views, knowledge, and acquaintance with said jurors. It is further shown in the qualification that the list of veniremen had been duly served upon appellant for the proper time, and that his attorneys had been notified of the date on which the case would be called for trial a long time prior thereto. This bill, as qualified, shows no error.

Bill No. 4 complains of the action of the court in refusing to issue a writ of certiorari to the .clerk of the district court of Comal county requiring him to perfect the record by showing the number of indictments returned in Comal county by the grand jury, including the one against appellant, and by showing fully the order overruling the motion to quash the special venire in said county. The court qualifies this bill by stating that when said motion was presented he granted to the district attorney time within which to have the district clerk of Comal county come to Lockhart and bring with him all of his orders, judgments, and records pertaining to this cause, and that said district clerk did appear in open court with these records, made affidavit, and testified that the transcript attached to the state’s reply to the defendant’s motion for certiorari contained a correct transcript and record of all the orders, decrees, etc., made in the district court of Comal county in said cause. The qualification further states that after the evidence was heard on the contested motion, and with all the records before the court, said motion was overruled. This bill, as qualified, shows no error.

Bill of exception No. 5 complains of the action of the court in refusing to grant the appellant’s motion for two days within which to investigate and inquire into the talesmen summoned in this cause after the special venire had been exhausted. This bill is qualified by the court, who quotes from the affidavit of C. F. Richards mentioned in the qualification to bill of exception No. 3, to the effect that the court granted appellant 6 hours and 15 minutes within which to examine the list of talesmen summoned by the sheriff, and that the said C. F. Richards, a Lockhart attorney, assisted appellant’s counsel in passing upon said talesmen, giving to them all the information that he had concerning same. This bill presents no error. In Bradley v. State, 96 Tex. Cr. R. 81, 256 S. W. 292, this court held that appellant was not entitled to “one day” before being called upon to pass on talesmen, after a special venire had been exhausted.

In bill No. 6 complaint is made to the action of the court in permitting the state’s witness Bartholomae to testify that a small book which he took from appellant at the time of the latter’s arrest contained different names and numbers in it and contained the name of Batesville, a town near the Rio 'Grande border, “going through Pearsall down to Batesville.” The appellant objected to said testimony on the ground that it was immaterial and prejudicial. The court’s qualification to this bill states that the witness Owens testified for the state, without objection, that while he was helping appellant start his car in New Braunfels, on the morning after the alleged homicide, appellant told him that he “ought to have been out the night before and down on the border by then.” We think the objection urged to this testimony went more to the weight than to the admissibility of same, and that no error was committed by the court in overruling said objection, under the facts in this record and as presented in this bill.

Bill -No. 7 complains of the action of the court in permitting the state’s witness Dr. Wright to testify that he removed the spots found on appellant’s pistol, examined them under a microscope, “and found red blood cells.” The appellant objected to this testimony on the ground that there was no evidence to show whether this was human blood or animal blood, and that this “was a contradiction and impeachment of the state’s' own witness.” The court’s qualification to this bill shows that Dr. Wright was qualified to give "this testimony. We think there was no error committed in admitting the testimony, and that the objection urged thereto went more to the weight than to the admissibility of same. This identical question was decided against appellant’s contention in the case of Howard v. State, 92 Tex. Cr. R. 221, 242 S. W. 739.

In bill No. 8 appellant complains of tbe action of tbe district attorney in stating to tbe jury, in his argument, tbat be bad many times in tbe trial of tbis case yielded legal rights wbicb be believed tbe state should have bad. Appellant’s counsel objected to tbis argument on tbe ground tbat there was nothing in tbe evidence to show tbat tbe state bad yielded anything, and tbat same was prejudicial. Tbe court qualifies tbis bill by stating tbat appellant’s counsel, in arguing tbe case to tbe jury, detailed tbe circumstances of another case within bis own knowledge where a defendant was convicted upon circumstantial evidence and it later developed tbat be was innocent, to wbicb argument tbe district attorney objected, but withdrew bis objection and requested the court to permit counsel to proceed with bis argument. Tbe closing argument of tbe district attorney objected to in tbis bill of exception was to tbe effect, according to the qualification, tbat be had withdrawn his objection to tbo argument made by appellant’s counsel because tbe state was asking tbe death penalty and wanted appellant to have all tbat was due him in tbe trial. Tbe qualification further shows tbat when appellant’s counsel objected to tbe statement' of tbe district attorney, tbe court instructed tbe district attorney to stay in tbe record and instructed tbe jury to disregard such argument. Tbis bill presents no error.

The appellant complains tbat tbe court erred in refusing to grant bis motion for new trial for tbe reason tbat tbe evidence was insufficient to sustain tbe conviction and penalty assessed in tbis case. After a careful examination of all tbe evidence introduced, we are unable to reach tbe conclusion tbat tbe jury were not warranted in finding tbe appellant guilty and in assessing the punishment set out in their verdict. Under tbe Constitution and laws of tbis state it is tbe peculiar province of the jury to pass upon tbe credibility of witnesses and tbe weight to be given to their testimony, and it is not tbe prerogative of the appellate court to interfere with their finding on questions of fact where there is evidence authorizing same.

Having reviewed the entire record and finding no error therein, we are constrained to bold that tbe judgment of tbe trial court should be affirmed, and it is accordingly so ordered.

PEE. CURIAM. Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court.

MOERCW, P. J., not sitting.

On Motion for Rehearing.

HAWKINS, J.

Appellant on motion for rehearing again urges tbat tbe court below sbould bave quashed tbe indictment based on appellant’s contention that it was returned by an illegal grand jury. A charge of murder was pending against appellant on a previous indictment, and tbe trial bad been set down for tbe 15th day of September at wbicb time a motion was filed to quash tbe indictment. Upon request of the district attorney for time to investigate the point of law involved tbe court granted until 10 o’clock September 16th and recessed court until tbat time. Presumably tbe court and district attorney concluded tbat the motion to quash was good. About 5:30 o’clock in tbe afternoon of September 15th the court directed tbe sheriff to reassemble the grand jury, wbicb had • been discharged for tbe term. Tbe first ground now urged against the indictment returned by tbe reorganized grand jury is tbat the court, having recessed until 10 o’clock on September 16th, was without power to make an order on September 15th directing tbe reassembling of tbe grand jury. We think there is no merit in tbis contention. If the court bad undertaken to make some order in tbe particular case which bad been passed to tbe next day appellant might have had just ground of complaint.

All tbe grand jurors were summoned by the sheriff to reassemble at S o’clock on tbe morning of September 16th. Eleven responded. Another juror was impaneled in lieu of tbe one man absent, and tbe grand jury reorganized and the indictment in tbe present case returned against appellant. Article 372, O. O. P. 1925, regarding tbe reassembling of a grand jury wbicb has been discharged for tbe term, is silent as to tbe character of Summons by wbicb they may be recalled. Appellant’s second contention is tbat article 345, O. O. P., wbicb requires three days’ notice to grand jurors prior to the first day of tbe term of court should be read into article 372. Concisely stated, bis proposition is that if all tbe grand jurors are summoned to reassemble and some fail to respond tbat the court is powerless to impanel other jurors in place of tbe absentees until tbe expiration of three days; in other words, tbe court must remain idle for three day^ to ascertain if tbe absent grand jurors will in tbat time respond to the resummons. We can not give assent to such contention. Article 372, O. 0. .P., being silent as to tbe method of reassembling a discharged grand jury, and silent also as to tbe required notice therefor, discretion regarding such matters is necessarily lodged in tbe trial judge, and unless bis acts be such as to show a clear abuse of such discretion, one indicted by such reorganized grand jury has no ground of complaint.

The motion for rehearing is overruled. 
      <&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     