
    BIGGINS v. STATE.
    (No. 11321.)
    Court of Criminal Appeals of Texas.
    Jan. 18, 1928.
    Rehearing Denied March 21, 1928.
    1. Criminal law <&wkey;l 111 (3) — Appellant is bound by qualification to bill of exception, which he accepts.
    Appellant is bound by facts appearing in qualification to bill of exception accepted by him.
    2. Indictment and information <&wkey;IO — Failure of record of district court during term presided over by special judge to show appointment of jury commission held not to vitiate indictment returned by grand jury, organized at subsequent term (Rev. St. 1925, art. 1886).
    Eailure of record of district court to show appointment or naming of jury commission at term presided over by spécial judge held not to vitiate indictment on account of alleged disability of jury commissioners to draw list of grand jurors, where grand jury, returning indictment, was organized at subsequent term; Rev. St. 1925, art. 1886, requiring record to show election or appointment of special judge, and his qualifications not being applicable.
    3. Indictment and information <&wkey;>l40(2)— Defendant attacking indictme'nt had burden to prove want of authority of jury commissioners selected to draw list of grand jurors.
    On defendant’s motion to quash indictment, burden was on defendant to show lack of authority in jury commissioners selected to draw list of persons for grand jurors.
    4. Indictment and information <&wkey;!37(6)— Where defendant testified that his name was Son Biggins, refusal to quash indictment on ground that real name was A. I. Biggins was not error.
    Where defendant testified on trial that his' name was Son Biggins, as alleged in indictment, denial of motion to quash indictment on ground that his real name was A. I. Biggins was proper.
    5. Criminal law <&wkey;>363 — Testimony of prosecuting witness that bullet fired at her almost struck her mother held part of res gestae in prosecution for assault to murder.
    In prosecution for assault to murder, testimony of prosecuting witness that bullet fired at her went across her mother’s bed, and almost struck bed, held admissible as.part of res gestae, where defendant was shown to have fired only one shot..
    6. Criminal law <&wkey;404(3) — Pistol found near place of arrest, and cartridge fitting pistol found at defendant’s house, held admissible in prosecution for assault-to murder.
    Pistol found near place where defendant had been apprehended on night before, and cartridge found at his house which fitted pistol, held admissible in prosecution for assault to murder, where pistol had three snapped cartridges and and one discharged cartridge in it, and state’s witness testified that defendant snapped his pistol three times and fired once, objections to such evidence going to weight and not admissibility.
    7. Criminal law <&wkey;8!4( 17) — Refusal to charge on circumstantial evidence held not error in prosecution for assault to murder, where witness positively identified defendant.
    Where, in prosecution for assault to murder, state’s witness positively identified defendant as man who fired shot, refusal of court to charge on circumstantial evidence was not error.
    On Motion for Rehearing.
    8. Evidence <&wkey;82 — Orders of special judge are presumed valid, and mere omission to record authorized orders does not render action taken thereunder void.
    Same presumption of validity should prevail concerning orders made by court in which special judge presides as in case of regular judge, and mere omission of clerk to record order made by special judge by proper authority does not invalidate action taken thereunder.
    9. Indictment and information <®=»I37(2) — Alleged irregularity of appointment of jury commission is not ground for quashing indictment; proper remedy being by challenge to array.
    Motion to quash indictment held not proper remedy for attacking, as irregular, appointment of jury commission which selected grand jurors; proper procedure being by challenge to the array.
    10. Criminal law <&wkey;1114(1) — Court, on appeal, considers only fact shown before trial court and appearing in record.
    Court, on appeal, can consider only such facts as were before trial court and appear in the record, and minutes of previous term of court should be disregarded.
    Commissioners’ Decision.
    Appeal from District Court, Ellis County; Tom J. Ball, Judge.
    Son Biggins was convicted of assault to murder, and he appeals.
    Affirmed.
    Dooney & Stout, of Ennis, for appellant.
    A. D. Emerson, Co. Atty., of Waxahachie, Archie D. Cray, Sp. Pros., of Ennis, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, assault to murder; penalty, six years in the penitentiary.

Motion was made in the trial court to quash the indictment. We pass on this question without pausing to consider or decide whether such a matter can be thus raised. The bill- of exception raising this point shows in substance the following: That at the regular September term, 1926, of the district court of Ellis county, Hon. Tom Whipple was elected as special judge, which fact appears by a qualification to the bill of exception, accepted by appellant and by which he is bound. A grand jury appeared at the next term of court in December, but the bill alleges as a fact that there nowhere appears in tlie proceedings of the district court of Ellis county for the September term any order of the district judge thereof or any special district judge thereof appointing or naming a jury commission to draw a list of persons for grand jurors of said court for the December term. Appellant was indicted at the December term, which indictment he insists is void, by reason of the absence of said order. He was subsequently tried before the regular judge at the. March term of the district court of Ellis county. The hill of exception fails to show that no order appointing a jury commission was in fact made.

Appellant relies upon the case of Blanks v. State, 105 Tex. Cr. R. 341, 288 S. W. 452, to sustain his contention. The case cited is based típon certain mandatory provisions of the statute requiring a record of the selection and oath of office of special judges before whom á ease may be tried. It has no application to the point raised in the bill of exception. There is no mandatory provision of the statute requiring a record of the appointment of jury commissioners,, nor one which makes void the acts of such commissioners, whose appointment the clerk has failed to record.

The trial of this case was before a regular, not a special, judge, and the proceedings attacked are not covered by the provisions of the statute referred to in the Blanks Case.

The burden was upon appellant to show lack of authority in the jury commissioners purporting to act, and this burden he has failed to discharge. As said in the ease of Schwartz v. State, 38 Tex. Cr. R. 26, 40 S. W. 976:

“If his authority is to be questioned, the onus is upon the party attacking his authority to show that he was not in fact a special judge of said district court, and that the order of transfer, in consequence, was void.”

See, also, Sanchez v. State, 94 Tex. Cr. R. 606, 252 S. W. 548; Johnson v. State, 14 Tex. App. 310.

It is further suggested that the indictment should be quashed because the real name of appellant was A. I. Biggins and not Son Biggins. The appellant seems to disagree with his counsel about this matter. He testified on the trial: “My name is Son Biggins.” He was referred to by the witnesses as “Son Biggins.” The contention is wholly without support in the record, even if it were sound as a legal proposition.

By bill of Exception No. 5 it is.made to appear that Mrs. Thompson, the prosecuting witness, was permitted, over objections, to testify that the bullet fired at her went across her mother’s bed and almost struck the bed. Appellant is shown to have fired only one shot, which was the one referred to by witness. It was a part of the res gestse, and clearly admissible. McCall v. State, 14 Tex. App. 353; Maxey v. State, 104 Tex. Cr. R. 661, 285 S. W. 617; Underhill’s • Criminal Evidence, § 501. It was admissible under the facts of this ease not only to show that the bullet almost struck the mother of prosecuting witness, but it would have been permissible to prove that it did in fact strike her, if. same had been a fact, and such testimony, being res gestse, under the circumstances would not even have had to be limited in the court’s charge. Collins v. State (Tex. Cr. App.) 299 S. W. 403; Jenkins v. State, 59 Tex. Cr. R. 475, 128 S. W. 1113.

By another bill complaint is made of the introduction of a pistol found the next morning where the appellant had been apprehended the night before and of a cartridge at his house which fitted this pistol. The pistol found had three snapped cartridges.and one discharged cartridge in it. A witness for the state testified that appellant snapped his pistol three times and fired once. The evidence was admissible, and the objections to same go to its weight and not to its admissibility. Underhill’s Crim. Evidence (3d Ed.) § 494; Forrester v. State, 73 Tex. Cr. R. 61, 163 S. W. 87; Hardin v. State, 51 Tex. Cr. R. 559, 103 S. W. 401.

It is urged that the court erred in not charging upon circumstantial evidence. Witness Charlie Thompson positively identified appellant as the mam who fired into the house of his mother, and the appellant himself does not deny it, testifying, “I don’t know whether what they have testified here about shooting in the house is true or not. I was not in condition to know what I was doing.” There could be no doubt of the correctness of the court’s action in refusing to charge on circumstantial evidence, under such facts.

Many other questions are raised, all of which have been examined and are believed to be without merit and not to justify any discussion.

The judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

Appellant was tried at a term of the district court which began on the 7th day of March, 1927, over which Hon. Tom J. Ball presided. The indictment was returned at the December (1926) term of the district court, at which time Hon. Tom P. Whipple presided as special judge. The point apparently raised is that, in the absence of an order appointing a jury commission at the December term of court, the acts of the grand jury selected by the court from persons designated by the jury commissioners at the subsequent term were void. As stated in the original opinion, there are numerous precedents to the effect that, when a conviction results from a trial in the district court oyer which a speoial judge presides, a reversal will he ordered on appeal, unless the record shows the election or appointment of the special district judge and his qualification. Such is the interpretation of article 1886, R. S. 1925, made by this court in Harris v. State, 105 Tex. Cr. R. 342, 288 S. W. 450, and Blanks v. State, 105 Tex. Cr. R. 341, 288 S. W. 452, and the numerous authorities collated in each of said cases. So far as we are aware, however, it has never been held that the validity of a grand jury organized at a subsequent term of court from persons designated by the jury commission appointed at the preceding term, presided over by a special judge, was rendered void by reason of the failure of the record to show the appointment of the jury commissioners. The statute requiring that the special judge he selected according to the statutory law, and that his acceptance and qualification he made a matter of record, has, throughout the history of this court, been deemed mandatory, and that a trial and conviction at a term of court at which a special judge purports to have presided cannot be upheld in the absence of a record showing his appointment and qualification.

Touching the orders made by the court in which a special judge presides, it would seem thát there would prevail the same presumption of validity as would attach with the regular judge presiding,' and the mere omission of the clerk to record an order made by proper authority is not believed such fault as would render void action taken by reason of the order. 20 Oyc. of Law & Proc. pp. 1305-1312; 13 Ruling Case Law, pp. 1016-1018. Analogous is the case of Schwartz v. State, 38 Tex. Cr. R. 29, 30, 40 S. W. 976, 977, from which we quote as follows:

“Now, there is no authority in any statute that we know of requiring the election and qualification of a special judge selected under article 1071, Revised Statutes 1895, to accompany the transfer of the case as a part of the record thereof; and we hold that where the transfer shows that it was from the district court to the county court, and by a special judge, it will be presumed that the contingency arose which authorized the selection of the special judge, and that all of the conditions of his appointment afid qualification, as required by the statute, were complied with, and entered upon the minutes of the district court, as the law requires. If his authority is to be questioned, the onus is upon the party attacking his authority to show that he was not in fact a special judge of said district court, and that the order of transfer, in consequence, was void. The cases to which we are referred by counsel, as stated before, have no application to this case.”

Erom the qualification of the bill of. exceptions under discussion, it appears that, at the September term, 1926, “Hon. Tom P. Whipple, an attorney of this'bar, was elected in due form as special judge of this court for the September term, 1926, and as such had jury commissioners at the last of the term to draw a grand jury and jurors for the various weeks of the December term, 1926, of this court, -and the regularly drawn grand jury was impaneled at the December term according to the provisions of the statutes.” This bill, so qualified, was accepted without objection.

The opinion is further expressed that on the facts upon which the appellant relied —a motion to quash the indictment—was not the proper remedy, even though the appointment of the jury commission was irregular. If vulnerable, the attack should have been by challenge to the array. Appellant was in jail, charged with the present offense, at the time the grand jury was organized. His attack upon the indictment is, not that there were no jury commissioners appointed and no grand jury drawn by them, but that the selection of the grand jury was by a jury commission irregularly appointed. The situation does not seem to bring it within the purview of Hunter’s Case (Tex. Cr. App.) 299 S. W. 437. In that case there was no attempt at the previous term to appoint jury commissioners to select a grand jury, and the failure to do so was not for good cause.

Attached to the argument on motion for rehearing is what purports to be some excerpts from the minutes of the September term of court, 1926. They are not a part of the record in the present appeal. Upon appeal, there can be considered only such facts as were before the trial court and appear in the record on appeal.

The motion for rehearing is overruled. 
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