
    FRENCH v. STATE.
    (No. 7851.)
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1924.
    Rehearing Denied Jan. 14, 1925.)
    1. Criminal law <&wkey;1092 (12) — Bystanders’ bills sworn to by only two persons not considered.
    Bystanders’ bills sworn to by only two persons are not considered, as Rev. St. art. 2067, requires three.
    2. Indictment and information <&wkey;I37(l) — Refusal to quash indictment proper. *
    Motion to quash indictment for unlawful sale of intoxicating liquors, based upon Acts 36th Leg. 2d Called Sess. (1919)- c. 78, and amendments,. Acts 37th Leg. 1st Called Sess. (1921) c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, arts. SSS^-SSS^tt), held properly denied.
    3. Indictment and information <&wkey;l25(3l) — Indictment charging sale of “spirituous, vinous, and malt liquors” held not duplicitous.
    Indictment charging sale of “spirituous, vinous, and malt liquors, capable of producing intoxication,” was not duplicitous.
    4. Criminal law <3=^622(2) — Severance not granted to make available testimony of one not indicted for the same offense.
    In prosecution for sale of intoxicating liquors, motion to sever, to make available testimony of one under separate indictment for possession, manufacturing and possessing premises for storing liquors, growing out of the same transaction, held properly denied; offenses charged against proposed witness being different from that charged against defendant.
    
      5. Criminal law <&wkey;l 144(8) — Ruling on motion, to quash jury panel presumed correct, where evidence not preserved.
    Where the evidence is not preserved, ruling by the trial court on motion to '.quash jury panel is presumed correct.
    6. Criminal law <§=»1050 — Failure to sustain demurrer to pleas of former acquittal and former conviction held not error in absence of exception.
    That court failed to sustain- demurrer to pleas of former acquittal and former conviction before reading to the jury held, not error, where, on agreement of counsel, court reserved rulings on exceptions to these pleas until evidence was heard, and no exception was taken to the refus.al to submit the pleas.
    7. Intoxicating liquors <&wkey;239(IO) — Charge submitting sole question of sale in approved form held proper.
    In a prosecution for sale of intoxicating liquors, court’s charge, submitting to jury in approved form the sole issue, of sale to witness, held proper.
    8. Witnesses (&wkey;79 (3) — Mental competency of witness held for the court.
    Competency of witness, depending on questioned sanity, is for the court; Code Cr. Proc. ■arts. 7S8, 791, 794, 795, and Pen. Code, art. 91, not being involved.
    9. Criminal law &wkey;>l 120(10) — Bill of exceptions showing no evidence as to sanity of witness, on which trial court acted, presents nothing for review.
    Where bill of exceptions brings up no evidence on which trial court acted in determining sanity of witness, appellate court is without facts to say discretion was abused.
    On Motion for Rehearing.
    10. Criminal law <&wkey;>l 137(2) — Objection to mention of former conviction by jury held not basis of complaint, in view of' defendant’s statement.
    Where juror testified that mention was made by the jury, during their retirement, of a former conviction, after verdict was agreed upon, and record shows appellant insisted during trial on stating such fact to them, there is no basis for complaint.
    Appeal from Criminal District Court, Travis' County; James R. Hamilton, Judge.
    Tas French was convicted of unláwfúí sale of intoxicating liquors,, and appeals.
    Affirmed.
    R. A. Brooks, of Bastrop, and J. F. Hair, of San Antonio, for appellant. -
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst State’s Atty., both of Austin, for the State.
   MORROW, P. J.

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

The. indictment named-Tom-Menefee as the .purchaser, and he gave testimony .which, if believed, is sufficient to. support the verdict.

Several bystanders’ bills are not .in ■ shape- for consideration for the reason that they -are sworn to by only two -persons, whereas .-the law requires three. R. S. art. 2067.

There was no error in refusing to quash ,the indictment. The statute upon which it was founded (chapter 78, Acts 36th Leg., 2d Called Sess., and the amendments in chapter 61, Acts 37th Leg., 1st Called Sess. [Vernon’s Ann. Pen. Code Supp.. 1922,, arts. SSS^SSS^tt]), has repeatedly been held valid, including that phrase which denies the privilege of a suspended sentence to one above the age of 25 years. See Davis v. State, 93 Tex. Cr. R. 192, 246 S. W. 395.

The averments in the 'motion to quash, setting up matters of fact, were, according to the bill as qualified, met by evidence, which is not produced here, upon which. the trial court determined the averments to -be untrue. In charging the sale of “spirituous,. vinous, and malt liquors capable of producing intoxication,” the indictment was not rendered duplicitous. See Trevinio v. State, 93 Tex. Cr. R. 439, 247 S. W. 872.

A motion for severance was made, asserting that Ed French was under indictment for the unlawful possession of intoxicating liquors, for the. unlawful manufacture of such liquors, and for the possession of premises kept for the purpose of unlawfully storing intoxicating liquors. ■ The motion contained an averment -that the separate indictments against Ed French grew out of the same transaction as that upon which the appellant was prosecuted. The appellant was on -trial for the unlawful sale of intoxicating liquors, which in law is an offense-entirely distinct from those with which Ed French was charged. According to the averments in the motion to sever, the purpose of the motion was to make available to the appellant the., testimony, pf Ed French. As we .understand the law, there was nothing in ■the facts averred • which would have disqualified Ed French. as, a 'witness in the '.appellant's case.- To disqualify Ed'French, it would have been necessary that he be charged with the same offence as that, for which the appellant. was on trial. See Clark v. State, 81 Tex Cr. R. 157, 194 S. W. 157, and precedents therein cited.

The motion.to quash the jury panel raised questions of fact which, on the hearing thereof, were determined by the 'trial court against the appellant. The evidence not having been preserved, the presumption that the ruling was correct must prevail.

The appellant’s attack upon the validity of the statute pertaining to ithe use of the jury wheel (section 660, C. C. P.), is the same as that which has heretofore been rejected. See Logan v. State, 54 Tex. Cr. R. 74, 111 S. W. 1028, and other cases listed in Vernon’s Tex. Crim. Rep. vol. 2, p. 356.

Pleas of former conviction and former acquittal were filed and read to the jury. In one of them the conviction of an offense similiar to that for which the appellant was on trial was revealed to the jury. Appellant complains that the trial court failed to sustain the demurrer to these pleas before they were r.ead to the jury. The court reserved his ruling upon the exception to the pleas until after he had heard evidence, and this was done upon the agreement of counsel. In the proceeding, as revealed by the bill as qualified, we perceive no error. There seems •to have been no exception to the action of the court in refusing to submit the pleas to the jury.

A number of exceptions to the court’s charge were presented. The evidence developed nothing unusual so far as it relates to the issues involved, and, so far as we are able to perceive, the law would demand no charge other than that which was given by the court, which is the same in substance as that which has often been approved in submitting to the jury cases involving the same offense. The indictment contained but one count, and the truth of the averment that the appellant had sold intoxicating liquor upon the occasion in question to the witness Tom Menefee was' the sole issue for decision by the jury, and was properly submitted to them in the court’s charge.

Appellant insisted that Menefee was an incompetent witness and introduced evidence endeavoring to show that the witness was insane. The court declined to submit to the jifry the issue of tlie competency of the witness, but passed on to the jury, together with the evidence adduced upon the subject, the question of his credibility. The competency of Menefee to testify was for the court to decide. See Charles v. State, 81 Tex. Cr. R. 457, 196 S. W. 179; Carter v. State, 87 Tex. Cr. R. 299, 221 S. W. 603; Ruling Case Law, vol. 28, p. 449, § 36, and page 451, § 38; State of Washington v. Pryor, 46 L. R. A. (N. S.) p. 1029, note; also Mills v. Cook (Tex. Civ. App.) 57 S. W. 81. In Wharton’s Crim. Ev. vol. 1, p. 719, § 357, it is said:

“Whatever may be the objection to the competency of a witness, whether interests, insanity, infancy, or public policy, if it goes to in-competeney for the purpose for which the witness is. called, it must be determined by the court.”

There may be some exceptions to this rule, such as are illustrated by submitting to the jury the incompetency of a declarant to make a dying declaration. There are certain statutory conditions which render a witness incompetent. See article 788, C. C. P., also articles 791, 794, and 795; also article 91, P. C. None of these exceptions obtain in the present case, and none are involved save that of insanity, which is referred to in article 788, supra. The court in qualifying the appellant’s bill, complaining of its refusal to hold the witness Menefee insane, states that he heard evidence upon the subject and determined the witness competent. The appellant does not, in his bill of exceptions, bring up the evidence upon which the court acted, and this court is without facts upon which to determine that the action of the trial court reflects an abuse of discretion. The evidence heard by the jury upon the whole case is before this court, and in that nothing has been discerned or pointed out which would warrant this court in holding that the witness Menefee was incompetent as a matter of law. Clearly it was not incumbent upon the trial court to submit to the jury the question of the competency of the witness.

Several special charges addressed to the proposition that the competency of the witness Menefee was a question of fact for the jury were, in our judgment, properly refused.

A bill of exceptions, embracing the entire speech of the district attorney, covering seven pages of the record, is addressed to the proposition that in his remarks there was a reference to the failure of the appellant to testify. The particular remark has not been pointed out, nor have we perceived it.

The point is made against the verdict that there was a reference made to the former, conviction of the appellant. A juror testified:

“While I was on the jury, I learned that the defendant had been given a two years’ sentence in another case. Some one mentioned it in the jury.”

This fact was put before the jury by the appellant in his plea of former conviction, which he insisted in reading to the jury, and the mention of it by the jury cannot justly be made the basis of complaint. Moreover, it appears that the matter was not mentioned until after the verdict was agreed upon. See Moore v. State, 52 Tex. Cr. R. 341, 107 S. W. 540; Fox v. State, 53 Tex. Cr. R. 155, 109 S. W. 370; Ferguson v. State, 95 Tex. Cr. R. 212, 253 S. W. 290; Wood v. State, 86 Tex. Cr. R. 550, 217 S. W. 1037; Hallmark v. State, 89 Tex. Cr. R. 257, 230 S. W. 697; Patterson v. State, 87 Tex. Cr. R. 95, 221 S. W. 601.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant’s seventh bill of exception has again been considered by us, and we find no reversible error therein.

We are unable to see how appellant can justly complain in another bill of exceptions that mention was made of his former conviction by tbe jury during their retirement, when the record shows that he insisted during the trial upon stating such fact to them; The same juror who testified as to such mention says it occurred after the jury had voted guilty, but before the foreman had written out and signed the verdict.

We have again reviewed appellant’s complaint of the overruling of his motion to quash the jury panel. Said motion in part refers to the interchangeable jury law passed in 1917, and in part to the jury wheel law of 1907. We are not led to believe that the attack on either of said statutes is supported in the record before us.

The motion for rehearing will be overruled. 
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