
    GENTRY v. STATE.
    (No. 10000.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1926.
    Rehearing Denied Jan. 19, 1927.)
    1. Grand jury <&wkey;l7 — Accused after indictment cannot reopen hearing on plea filed by another before grand jury was impaneled, in absence of showing that he was not charged with offense before impanelment (Code Cr. Proc. 1925, arts. 333-340, 361).
    Where one other than accused, challenged array and objected to impaneling of grand jury, under Code Cr. Proc. 1925, art. 361, for action of judge in erasing names of four grand jurors selected by commissioners and having others inserted contrary to articles 333-340, defendant, after indictment, cannot reopen in his own behalf the hearing on plea filed by such other before grand jury was impaneled, in absence of showing that he was not charged with offense before grand jury was impaneled.
    2. Indictment and information <^>137(2) —Ordinarily, one indicted after grand jury is impaneled must move to set aside indictment for illegal organization of grand jury (Code Cr. Proc. 1911, art. 570).
    Ordinarily, one charged with an offense and indicted after grand jury is impaneled is relegated to a motion to set aside indictment, under Code Cr. Proc. 1911, art. 570, for illegal organizing of grand jury.
    3. Grand jury <&wkey; 17 — Violation of state or federal bill of rights in organizing grand jury will be relieved against without statutory authority.
    Courts will relieve against organizing of grand juries under circumstances violative of state or federal bill of rights, though having no statutory authority.
    
      4. Criminal law <&wkey;>l 166(1) — Denial of motion to suppress evidence is not ground for reversal.
    Motion to suppress evidence obtained by alleged illegal search is preliminary, and its denial is not a ground for reversal.
    5. Criminal law &wkey;>l (47(13) — In absence of showing of evidence before jury, evidence is presumed to support verdict.
    Appellate Court presumes that evidence supports verdict when not informed what evidence was before jury.
    Appeal from District Court, Hopkins County; J. M. Melson, Judge.
    Tom Gentry was convicted of unlawful manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    Ramey & Davidson, of Sulphur Springs, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s A tty., of Groesbeck, for the State.
   MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of three years.

The record is not accompanied by any statement of the evidence heard in the trial court. The indictment is attacked upon aver-ments claiming that certain conduct attributed to the district judge was violative of the statutory provisions governing the selection of persons from whom the grand jury was drawn. The statute requires the appointment by the judge of three commissioners to select the grand jury; that the judge shall instruct them concerning their duties; and that they shall take the oath of office in which it is said:

“ ⅜ * * That you will not make known to any one the name of any juryman selected by yo.u and reported to the court.”'

The law directs that they shall not separate; that they shall be kept free from intrusion; and that they shall select 16 men with certain qualifications, whose names shall be put in a sealed envelope, indorsed with the signatures of the commissioners, and delivered to the judge in open court. See C. C. P. 1925, arts. 333 to 340, inclusive.

Appellant avers that after appointing and instructing the jury commissioners at the January term, 1925, the judge of the court told them privately to exhibit to him the list of names selected as grand jurors' before sealing same; that upon compliance with this request the judge erased from the list the names of four persons who, he said, were objectionable to him, and directed that in their stead others should be selected by the commissioners, which was done. Appellant also avers that at the opening of the September term and Before the grand jury was impaneled one J. H. Davis, a citizen of Hopkins county and a “person” within the designation of the statute, set up the alleged facts hereinabove recited in a writing verified under oath, upon which averments the said Davis based the challenge to the array to which, according to the appellant’s aver-ments, the court sustained a demurrer and impaneled the grand jury from the 16 persons whose names were embraced in the written report of the jury commissioners in the manner hereinabove mentioned. The aver-ments in substance were supported by the affidavits of the persons -who composed the jury commissioners. . •

Article 570, C. C. P. 1911, reads thus:

“A motion to set aside an indictment or information shall be based on one or more of the following causes, and no other:
“1. That it appears by the records of the court that the indictment was not found by at least nine grand jurors, or that the information was not presented after oath made as required in article 467 (479).
“2. That some person not-authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or were voting upon the same.”

Article 361, C. C. P. 1925, reads as follows:

“A challenge to the array shall be made in writing for these causes only:
“1. That those summoned as grand jurors are not in fact those selected by the jury commissioners.
“2. In case of grand jurors summoned by order of the court,, that the officer who summoned them had acted corruptly in summoning any one or more of them.”

Appellant was indicted September 1, 1925. The date of the offense was laid on the 26th day of May, 1925. The writing attacking the indictment was filed September 25, 1925. As this court conceives the law, the challenge to the array which was described as having been made by J. H. Davis is not available to the appellant. If the appellant was under arrest or under bond charged with the offense at the time the grand jury was impaneled, he was privileged to challenge the array, under the procedure and upon the authority and on the grounds named in the statute which is quoted above, article 361, supra. If, under such circumstances — that is, he being under arrest or under bond charged by complaint with an offense — liis right to challenge the array would be waived unless exercised by him before the grand jury was impaneled. This, we understand, has been announced by this court upon many occasions, among which are Smith v. State, 97 Tex. Cr. R. 7, 260 S. W. 602; Hickox v. State, 95 Tex. Cr. R. 173, 253 S. W. 823; Robinson v. State, 92 Tex. Cr. R. 527, 244 S. W. 599; Garrett v. State, 66 Tex. Cr. R. 480, 146 S. W. 930. As the matter now comes before this court, it is simply in the condition that Mr. Davis, upon certain averments, challenged the array and objected to the impaneling of the grand jury. This is not made evident by bill of exceptions settled and filed at the time, but appellant’s effort is, after indictment, to reopen, in his own behalf, the hearing on the plea filed by Davis before the grand jury was impaneled. If admissible under any circumstances, it seems manifest that it could not be entertained on appeal in the absence of showing by this record that the accused was not charged with the offense before the grand jury was impaneled. There are other statutory provisions guarding the rights of one charged with an offense and indicted after the grand jury is impaneled. Such persons, however, are ordinarily relegated to a motion to set aside the indictment. See Powell v. State, 99 Tes. Cr. R. 276, 269 S. W. 443. Even without direct statutory authority the courts will take cognizance of and afford relief against the conduct of persons in authority in organizing grand juries under circumstances violative of the Bill of Rights embraced in the Constitution of the United States and of this state. See Juarez v. State (Tex. Cr. App.) 277 S. W. 1091. The matter at present under review, however, does not come within the purview of article 570, C. C. P. 1911, enumerating the conditions under which one may set aside an indictment. The indictment in the present case is not shown by the record to have been found by less than 9 grand jurors, nor that there was present in its deliberations some persons not ’ authorized by law as contemplated in article 570, supra; nor does it embrace a violation of the Bill of Rights as was the case of Juarez v. State, supra. The facts averred, if true, present an irregularity in the conduct of the district > judge and jury commissioners which is unique, and, if available, would come within the purview of a challenge to the array. In the present instance the appellant is now shown to have made such a challenge; nor does it appear that he was not in a position to have done so on the ground that the persons summoned for grand jury service were not the ones selected by the commissioners.

A second bill of exceptions complains of the refusal of the court to suppress evidence. The motion is based upon the claim that certain officers became acquainted with criminative facts by the search of the appellant’s premises without a valid search warrant. The motion is preliminary, and the action of the court is not available as a ground for reversal. It does not appear from the bill that the evidence to which it relates was in fact before the jury; nor is there a statement of facts showing upon what proof the verdict was rendered. In the absence of information from the record showing the evidence that was before the jury, the presumption will be indulged that it was sufficient to support the judgment. Moreover, the qualification of the bill in effect negatives the averments therein touching the illegal search.

The judgment is affirmed.

On Motion for Rehearing.

BATTIMORE, J.

Appellant urges that we were in error in holding that the record did not affirmatively show that he was under arrest and charged with this offense at the time the grand jury,was organized. He refers us to page 33 of the transcript, affirming that the showing is there made. An investigation shows that the matter referred to is but a statement made by appellant as a part of his objections set out in a bill. There is no affirmation on the part of the trial judge that the matters stated in the objection are in fact- true.

The motion for rehearing will be overruled. 
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