
    MATTHEWS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1913.
    Rehearing Denied Nov. 26, 1913.)
    1. Criminal Law (§ 1044) — Indictment — Mode oe Objection in Lower Court.
    Code Cr. Proc. 1911, art. 451, declares that an indictment shall be sufficient if it is the act of a grand jury of the proper county. Article 576 permits an exception to the form of an indictment on the ground that it was not presented to the proper court, and article 597 provides that, where the exception to the indictment'is merely on account of the form, the same shall be amended if defective. An indictment alleged that the grand jury'presenting it was organized at the July term, 1912, and was marked “filed” in the district court July 9th, while the records of the district court showed that it was returned in January, 1913, and was at that term by proper order transferred to the county court. Meld, that the statement in the indictment and the file mark might be disregarded as surplusage, and hence, as the defects would have been subject to amendment if raised by motion to-quash, a bill of exceptions, reciting an objection to the indictment on the ground that there was nothing to show that it had been found by any legal grand jury or duly transferred to the county court, must be overruled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2672, 2674, 2675; Dec. Dig. § 1044.]
    2. Criminal Law (§ 1059) — Appeal—Exceptions— Sufficiency — Instructions.
    An- exception to a portion of the main charge on the ground that it was not supported by the evidence is too general for consideration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. § 1059.]
    3. Criminal Law (§ 1172) — Appeal—Harmless Error.
    In a prosecution for false imprisonment, while it was improper for the court in giving the statutory definition of the offense to quote another article of the statute defining threats in connection with the offense, where there was no evidence of any threats, the error was harmless, where the case was submitted solely on the false imprisonment alleged and proved.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    4. Criminal Law (§ 1099) — Appeal— Statement of Facts — Time of Filing.
    In a criminal prosecution, where accused on motion for new trial offered evidence of the improper conduct of the jury, his statement of facts preserving the evidence cannot be considered unless filed in term time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dee. Dig. § 1099.]
    Appeal from San Augustine County Court; H. K. Polk, Judge.
    Sam Matthews was convicted of false imprisonment, and he appeals.
    Affirmed.
    Davis, Davis & Davis, of Center, for appellant. ' C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-
    
   PRENDERGAST, P. J.

From a conviction of false imprisonment, with a fine of $500 imposed, this appeal is prosecuted.

The evidence amply justified the jury to believe and find an aggravated case of false imprisonment by appellant, who was a deputy sheriff of Shelby county, to effect the collection of a claimed debt due him by Jesse Parker, the party imprisoned, and which false imprisonment succeeded in its purpose. As soon as this was accomplished, appellant released said Parker, without bond.

The indictment, in its face, after the .necessary allegation, “in the name,” etc., alleges, “the grand jurors for the county of San Augustine, state aforesaid, duly organized as such at the July term, A. D. 1912, of the district court for said county, upon their oaths in said court, present,” etc. It alleges the offense' was committed on Or about April 1, 1912. The orders of said district court clearly show that the indictment' in this case was returned into said court by the grand jury thereof in January, 1913, and that at that term the district court by proper order transferred said indictment to the county court of said county, wherein it was filed on January 14, 1913. The case was tried in said county court on February 7, 1913.

Appellant did not plead to the jurisdiction of the county court, and did not make any motion to quash the indictment. The only way he raised or attempted to raise any question on this subject is by bill of exceptions, which shows that when the case was called for trial he objected to said indictment, and, being required to plead thereto, because there is nothing in the record to show it had been found by any legal grand jury of the district court of said county, or transferred from said district court to said county court. To his bill, as a part of it, is attached the order of said district court as to the grand jury, return of said indictment, and transfer thereof to the county court as given above.

From all this, it is clear that the legal grand jury of said county found and returned into said district court, properly, only one indictment against appellant, charging him •with the offense of which he was convicted, and that the same was properly transmitted by the district clerk on the proper order of transfer from the district court to the county court, and that he was properly tried on that indictment, and no other. The statement in the indictment that the grand jury was organized at the July term, 1912, or that the indictment was marked “filed” in the district court July 9, 1912, if so, would, at most, be but formal defects, and should have been treated as surplusage, and could and should have been corrected, as such formal defects, if appellant had either pleaded to the jurisdiction or made a motion to quash on either or both those grounds. C. C. P. arts. 451, 576, 597; Osborne v. State, 24 Tex. App. 398, 6 S. W. 536; Grayson v. State, 35 Tex. Cr. R. 630, 34 S. W. 961; Murphy v. State, 36 Tex. Cr. R. 28, 35 S. W. 174; Luster v. State, 63 Tex. Cr. R. 541, 141 S. W. 209, Ann. Cas. 1913D, 1089. For further collation of some of the cases, see Branch’s Crim. Law, §§ 883, 888, 905; White’s Ann. C. C. P. § 566.

While appellant’s exception “to the portion of the main charge as to threats, because there is no evidence of threats in the case to justify the charge,” may point out no specific error, and is on that account too general to require consideration (Byrd v. State, 151 S. W. 1068), yet, if considered, it presents no reversible error. It was unnecessary, and we may say improper, for the court in giving the jury the statutory definition of the offense to also quote article 1042, P. C., defining threats in connection therewith. Still, in submitting the case to the jury for a finding, nothing was submitted on that subject; but the case was submitted only on the false imprisonment alleged and proven. The charge complained of could not have misled the jury, nor injured appellant, as frequently held by this court. Reynolds v. State, 58 Tex. Cr. R. 273, 124 S. W. 931, 137 Am. St. Rep. 973; Railsback v. State, 53 Tex. Cr. R. 545, 110 S. W. 916; Keeton v. State, 59 Tex. Cr. R. 332, 128 S. W, 404; Jones v. State, 63 Tex. Cr. R. 413, 141 S. W. 953; Milling v. State, 150 S. W. 436.

Under the law and uniform holding of this court, appellant’s contention that the jury was guilty of misconduct in discussing his failure to testify, if it did, cannot be considered, because the evidence heard on this issue by the lower court was not preserved and filed during term time. Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263, and cases there cited; Patterson v. State, 63 Tex. Cr. R. 310, 140 S. W. 1128. It is needless to cite the many other cases.

It is unnecessary to state or discuss any otter question raised in this case. None of them present any error.

The judgment is affirmed.  