
    BELL v. STATE.
    (No. 7024.)
    (Court of Criminal Appeals of Texas.
    June 23, 1922.
    State’s Rehearing Denied Oct. 11, 1922.)
    1. Indictment and information <$=»10~ Illegal testimony before grand jury no ground for quashing indictment.
    An indictment may not be quashed on the ground that illegal testimony was heard by the grand jury returning it. ’
    2. Intoxicating liquors <®=>222— Indictment need not allege that liquor manufactured was not for medicinal, sacramental, scientific, or mechanical purposes.
    In a prosecution for manufacturing liquor under the amended Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588⅛ et seq.), it is not necessary that the indictment allege that the manufacture of the liquor was not for medicinal, sacramental, scientific, or mechanical purposes.
    3. Criminal law <3=5364(4), 368(3) — Evidence in prosecution for unlawful manufacture held part of res gestee.
    In a prosecution for manufacturing liquor, a statement of defendant, or his brother in the presence of defendant, that the officer should not arrest one M. for the offense, that the outfit found by the officer belonged to them, held, properly admitted as part of the res gest®.
    
      4. Criminal law <§=3363 — Rule of res gesta superior to rule excluding statements of one arrested.
    The rule of res gestee is superior to that which calls for the exclusion of the statements of one under arrest.
    5. Criminal law <§=>1170t/2(l) — Exclusion of question as to possession of search warrant held not prejudicial.
    In a prosecution for manufacturing liquor, it was not reversible error to refuse to permit a state witness to answer defendant’s question, “You said you had a search warrant?” rejection of such question not being shown to have been harmful.
    6. Jury <®=>79(i) — Refusal to draw jury In accordance with statute held reversible error.
    ,In a prosecution for manufacturing liquor, it was reversible error for the trial court to refuse on request to draw the jury in the manner directed by Vernon’s Ann. Civ. St. Supp. 1922, and Complete St. 1920, art. 5158½£.
    •Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.
    Leslie Bell was convicted of manufacturing liquor, and he appeals.
    Reversed.
    Estes, Payne, Morris & Pressly, of Fort Worth, for appellant.
    Jesse M. Brown, Cr. Dist. Atty., of Port Worth, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted, in the criminal district court of Tarrant county, of the offense of manufacturing liquor, and his punishment fixed at four years in the penitentiary.

We know of no law in this state to justify the quashing of an indictment upon the ground that illegal testimony was heard by the grand jury returning such indictment. There was no error in the action of the lower court in refusing to quash the indictment in the instant case, based upon said proposition.

It is not necessary that the indictment allege that the manufacture of the liquor in question was not for medicinal, sacramental, scientific, or mechanical purposes. Under the amended Dean Act, c. 61, General Laws, First and Second Called Session, 37th Legislature, p. 233 (Vernon’s Ann., Pen. Code Supp. 1922, art. 588½ et seq.), the manufacture of intoxicating liquor is forbidden, and, in a separate section from that containing the definition of the offense, it is provided that, if such manufacture be for medicinal, sacramental, etc., purposes, and after a permit has been secured for so doing, such act shall not be punishable under the laws of this state. We are of opinion that it is not now necessary for an indictment charging a violation of the Dean Law, as under said amendment, to negative the exceptions which are referred to. The instant prosecution was for an act alleged to have been committed since the taking effect of said amended law.

The statement of appellant, or his brother in the presence of appellant, to the effect that the officers should not arrest one McMillan for this offense, that the outfit found by the officers “belongs to us,” meaning himself and his brother, was properly admitted as a part of the res gestae. The officers had just discovered the still then in operation for the manufacture of liquor, and along with it a large number of barrels of mash and other things connected with said illegal business. Part of the mash was boiling in a large container, and the whisky was dripping from the mouth of a coil at the lower end of a barrel of water. The rule of res gestae seems to extend and to include statements of parties then engaged in the commission of the criminal act. In this class might be included the statement of a thief caught in possession of stolen property, or a burglar found red-handed in the act of entering a house or removing property therefrom, and we have no doubt of the application of the rule of res gestae to statements made by one found engaged in the manufacture of liquor, or in such proximity thereto as to fall within every reasonable deduction of his connection therewith. With us the rule of res gestae is superior to that which calls for the exclusion of the statements of one under arrest. Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175; Gowan v. State, 64 Tex. Cr. R. 401, 145 S. W. 614; Hickman v. State, 65 Tex. Cr. R. 583, 145 S. W. 914; Powers v. State, 23 Tex. App. 42, 5 S. W. 153.

We are unable to perceive any reversible error in the refusal of the court to permit a state witness to answer appellant’s question; which was as follows: “You said you had a search warrant?” We are not given any fact which would have appeared as the result of the answering of such question by said witness, the rejection of which was or could have been hurtful to appellant. We have examined the testimony carefully. Appellant was known under the name of Joe Bell. The officers procured a search warrant to search the premises of Ernest and Joe Bell. They found in the loft over the house a large quantity of mash, a still in operation, intoxicating liquor manufactured and being manufactured, and were told by appellant and his brother that the outfit belonged to them.

Appellant’s bill of exceptions No. 3 complains of the refusal of the trial court to draw the jury in accordance with the provisions of article 5158%f of the Revised Statutes of 1920. From said bill it appears that, before tbe case went to trial, appellant filed and presented to tbe court a written request as follows:

“To tbe Honorable George E. Hosey, judge of said court:
“Now comes tbe defendant, Leslie Bell, and moves the court on the call of this case to have the jury regularly drawn in open court as is required by Revised Statute 1920, article 5158½⅛ which motion he will renew on his announcement of ready, and after he had announced ready for trial.
“Wherefore, the defendants prays your honor to have the jury drawn in open court, as the law requires. Leslie Bell, Defendant.”

After setting out this written request, said bill proceeds with tbe following statement:

“Which motion the court, on considering, in all things overruled, and permitted the jury to he selected by the officer and brought into court, and refused to draw said jury names from the hat as requested, to which action of the court the defendant then and there in open court excepted and here now tenders his bib of exceptions.”

Article 5158%f was enacted in 1919, and is applicable to tbe criminal district court of Tarrant county. It contains tbe following:

“Provided, however, that the trial judge, upon the demand of any party to any case reached for trial by jury, or of the attorney for any such party, shall cause the names of ab the members of the general panel available for service as jurors in such case, to be placed in a hat or other receptacle and well shaken and said trial judge shall draw therefrom the names of a sufficient number of jurors from which a jury may he selected to try such ease, and such names shall he transcribed in the order drawn on the jury list from which the jury is to be selected to try such case. Acts 1917, 35th Leg., e. 78, § 7; Acts 1919, 36th Leg., c. 6, § 1.”

We know of no reason, nor is any assigned, for upholding tbe refusal of tbe righto have tbe names drawn in tbe manner directed by this statute. It was requested. It was refused. A plain right given by law was denied. Tbe case will be reversed.

On Motion for Rehearing.

HAWKINS, J.

Tbe state, through tbe Hon. Jesse M. Brown, criminal district attorney of Tarrant county, has presented a motion for rehearing calling attention to tbe fact that our opinion is not in harmony with Ellis v. State, 69 Tex. Cr. R. 469, 154 S. W. 1010.

In 1917 tbe Legislature passed what is known as tbe “Interchangeable Jury Law” to apply only in counties maintaining three or more district courts. Acts 1917, c. 78. This law has been carried forward in Vernon’s “Complete Texas Statutes” as articles 5158½ to 5158½1, inclusive (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5158½-5158½⅝ 5158½⅜ 5158y2g-5158i^i; Vernon’s Ann. Civ. St. Supp. 1922, arts. 5158y2d, 515Sy3f). That portion of article 5158¼f quoted in our opinion embraces tbe substance of articles 702 and 703 (old articles 682 and 683) C. C. P., which relate to the selection of ’juries where the “Interchangeable Jury Law” is not in effect, and the evident purpose of article 5158%f was to make the same provisions effective in counties coming under the latter law. This being true, the laws should logically receive the same construction.'

The point is made that the bill of exception presenting the question in the instant case fails to show injury to appellant, And, although there was a clear violation of a statutory requirement, in the absence of injury shown, our opinion, to be consistent with the Ellis Case, supra, should have held the error harmless. Duke v. State, 61 Tex. Cr. R. 441, 134 S. W. 705, and Mays v. State, 50 Tex. Cr. R. 165, 96 S. W. 329, are cited in the Ellis Case as authority for the proposition there decided. An examination of those cases reveals that in neither was a violation of a statutory requirement involved, and in that respect are entirely different from the Ellis Case. We cannot regard them as supporting the proposition decided in the latter case. The Ellis Case malms no reference to Adams v. State, 50 Tex. Cr. R. 586, 99 S. W. 1015, where the exact articles of the Code of Criminal Procedure were under consideration. The objection there was timely presented, and this court, speaking through Judge Henderson, upon the very point that no injury was shown, uses this language:

“It is no answer to this requirement of the statute, to urge that no injury is shown; that appellant, by the means adopted, was furnished with a fair and impartial jury.' We might go further and say, according to this reasoning, the court might adopt any method outside of the statute which might secure a fair and impartial jury. The law has ordained a tribunal for the trial of criminal cases, and has provided the method of selecting a jury, and there is no authority to resort to any other method, and it is not incumbent on appellant to show that he suffered injury by the failure of the court to follow the statutory method.”

The Adams Case is in line with many authorities from.this court prior to that opinion. We quote the language of Judge Willson in Pierson v. State, 18 Tex. App. 524:

“It has been well said: ‘The rule is well settled that it is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons. Large .discretion must be confided to the trial court in the performance of this duty, nor will the action of the court in this behalf be made the subject of revision, unless some violation of the law is involved or the exercise of a gross or injurious discretion is shown.’ Thompson & Merriam on juries, § 258. And it Ras been repeatedly held by this court that, in determining as to the fitness of a juror, the question is one largely of discretion with the trial judge, and his action therein will not be revised by this court, unless it be made apparent that the discretion has been' abused to the injury of the defendant’s rights, or that the law has been infringed.” (Italics ours.)

In Mason v. State, 15 Tex. App. 534, the court was passing upon the trial judge’s discretionary powers relative to individual jurors,- and uses this language:

“He has the proposed juror before him; observes his manner of answering questions, his appearance, and many other indications which cannot be brought before this court; and hence the trial judge is in a much better condition to pass upon the fitness of the individual to serve as a juror in the case, than this court can be from the record alone. Such being the case, this court will not revise such action of the trial judge, unless it should be made apparent to us that the trial judge had abused the discretion confided to him, to the injury of the defendant’s rights, or that he had infringed the law.” (Italics ours.)

As analogous, we cite Venn v. State, 86 Tex. Cr. R. 633, 218 S. W. 1060; Revill v. State, 87 Tex. Cr. R. 1, 218 S. W. 1045; Mayes v. State, 87 Tex. Cr. R. 512, 222 S. W. 571; Wray v. State, 89 Tex. Cr. R. 632, 232 S. W. 809; Matheson v. State (Tex. Cr. App.) 241 S. W. 1013 — construing article 553, C. C. P., providing that, if defendant in a felony case is on bail, the clerk shall deliver to him or his counsel a copy of the indictment and the effect of noncompliance therewith.

We regard our original opinion as in consonance with the well-established authorities, and the Ellis Case, supra, as out of harmony. In so far as it conflicts with this .opinion and Adams v. State, supra, the Ellis Case is expressly overruled.

The motion for rehearing is denied. 
      íSsoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <g=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     