
    SMITH v. STATE.
    (No. 8311.)
    (Court of Criminal Appeals of Texas.
    Feb. 6, 1924.
    Rehearing Denied March 26, 1924.)
    1. Grand jury &wkey;>!7 — Legality of grand jury must ordinarily be questioned by challenge to array.
    Under Code Cr. Proc. ■ 1911, art. 409, an attack upon the legality of the grand jury must be made by a challenge to the array unless it appears that defendant was not under arrest or charged with the offense at the time of the convening of the grand jury, and had no notice that it was investigating a crime involving him, in which case he might make a motion to quash the indictment for error in the formation of the jury if a proper reason for not having presented a challenge to the array could be shown.
    2. Criminal law <&wkey;603(ll) — Application for continuance must show diligence.
    Application for a continuance must show diligence.
    3. Affidavits <&wkey;5 — Swearing to application for continuance before defendant’s own attorney forbidden.
    An application for a continuance may not be sworn to before defendant’s own attorney.
    <&wkey;>For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes
    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 O. Morris, Asst. State’s Atty., both of Austin, for the State.
   IjATTI'MORE, 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 tbe incompetence of tbe jury commissioners and of tbe 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 in Robinson v. State, 92 Tex. Cr. R. 527, 244 S. W. 600. In 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 array as required by statute, tbe motion to quash. will not be considered.

Appellant’s application for continuance shows no diligence, and, besides, same-1 was sworn to before Us 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 thé 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 tUs 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.  