
    HARVEY v. STATE.
    (No. 10900.)
    Court of Criminal Appeals of Texas.
    Oct. 19, 1927.
    1. Criminal law &wkey;>970(3) — Proposition that grand jury was not lawfully selected1 cannot be ráised by motion in arrest of judgment, in absence of prior attack.
    Proposition that grand jury which returned indictment was not selected by jury commission regularly appointed at prior term cannot be raised by motion in arrest of judgment, in absence of prior attack on indictment.
    2. Criminal law &wkey;5980(l) — That plea of guilty to drunken driving admitted drunkenness did not bar state’s evidence thereon to enable jury to fix punishment (Code Cr. Proc. 1925, art. 502).
    The fact that defendant having pleaded guilty to driving an automobile while intoxicated was an admission that he was drunk did not bar state from going into such proof, where object thereof was to enable jury, under Code Cr. Proc. 1925, art. 502, to decide on amount of punishment.
    Appeal from District Court, Rains County; M. B. Harrell, Special Judge.
    Newt Harvey was convicted of driving an automobile while intoxicated, and he appeals.
    Affirmed.
    B. A. Carter, of Emory, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction for driving automobile while intoxicated; punishment, one year in the penitentiary.

Upon the trial of this case appellant, after due warning, entered his plea of guilty. He also made an application for a suspended sentence. The jury did not see fit to accord to him such sentence. No motion to quash the indictment or other preliminary motion appears in the transcript.

Appellant files a motion in arrest of judgment seeking to present the proposition that the grand jury which returned the indictment against him was not selected by a jury commission regularly appointed at a prior term of the court. Such question cannot be raised by a motion in arrest of judgment in tbe absence of some prior attack upon tbe indictment. Estrada v. State, 99 Tex. Cr. R. 140, 268 S. W. 958; Victor v. State, 86 Tex. Cr. R. 462, 217 S. W. 698.

Appellant bas three bills of exception complaining of tbe introduction of testimony. There appears to be no question of tbe materiality of tbe testimony so objected to, upon tbe proposition of showing that appellant was drunk at tbe time of the commission of tbe alleged offense. Appellant insists that, having pleaded guilty, this amounted to an admission of the fact that be was drunk and would operate to bar tbe state from going into such proof. We do not think so. Tbe object of admitting proof in cases where tbe accused pleads guilty in a felony case is to enable tbe jury to decide upon tbe amount of punishment which should be given. This is tbe plain provision of article 502, Code Cr. Proc. 1925. We know of no rule that would exclude from tbe consideration of tbe jury evidence introduced in such case which sheds. any light upon any material issue in the case.

Finding no error in the record, the judgment will be affirmed. 
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