
    BRAY v. STATE.
    (No. 9087.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.
    Rehearing Denied Oct. 14, 1925.)
    1. Courts <&wkey;42(3) — Act creating court for only two-year term, and not authorizing it to- impanel grand jury, held not unconstitutional.
    Acts 38th Leg. (1923) c. 76, creating Ninety-Second district court, held, not objectionable as violating Const, art. 5, § 7, because of provision for term of only two years and absence of provision authorizing court to impanel grand jury.
    2. Criminal law &wkey;>1090(7) — Refusal of continuance not considered, in absence of bill of exception.
    Refusal of continuance cannot be considered, in absence of bill of exception to such ruling.
    3. Criminal law &wkey;>l 115(2) — Refusal to quash jury panel for noncompliance with law in selecting jurors not considered, where bill of exception discloses no evidence in support of such allegation.
    .Refusal to quash jury panel for failure to select jurors, as required by law, cannot be considered on appeal, where bill of exceptions discloses no evidence in support of such allegation.
    4. Criminal law <&wkey;l 120(4) — Permitting state’s witness to testify after close of evidence not considered, where bill does not show what he testified to.
    Alleged error in permitting state’s witness to testify after evidence was closed cannot be considered, where bill of exception does not show what he testified to, especially as appellate court must presume, in absence of showing to contrary in bill, that trial judge did not abuse his discretion.
    5. Criminal law <S&wkey;86l, 1166*/2(1) — Permitting jury to smell liquor held error, but harmless, in view of evidence that it was whisky.
    Permitting jury to smell whisky, which state contended defendant was transporting, held, error, but harmless, where witness testified that it was same liquid, that it was' whisky, and that he turned it over to sheriff, and latter “testified that it was whisky and had not been out of Ms possession.
    6. Criminal law<&wkey;8I4(l7) — Refusal to charge on circumstantial evidence held not error.
    Where state’s witness testified to chasing defendant in automobile, hearing him tell his wiffe “to break it,” and seeing her strike something with hammer and throw out sack with broken jug, which witness immediately took possession of and delivered to sheriff, and defendant produced no refuting testimony, refusal to charge on circumstantial evidence was not error.
    7. Criminal law &wkey;>l 111 (3) — Court’s qualifications of bill of exception become part thereof on acceptance' by appellant’s attorneys.
    Court’s qualifications of bill of exception to remarks, of state’s attorneys become part of bill on acceptance by appellant’s attorneys.
    On Motion for Rehearing.
    8. Criminal law <&wkey;l 144(5) — Order of transfer to district court in same county presumed made, in absence of objection before verdict.
    Where case proceeded to trial, and verdict was rendered in Ninety-Second district court, without objection to absence of order of transfer from Thirtieth district court, as required by section 8, c. 76, Acts 38th Leg. (1923-), creating Ninety-Second district court, appellate court, in absence of affirmative record showing to contrary, will assume that such order was made; both courts having jurisdiction to try any felony case arising in Young county.
    Oommissioners’ Decision.
    Appeal from District Court, Young County ; H. R. Wilson, Judge.
    L. J. Bray was convicted of transporting intoxicating liqu.or, and appeals.
    Affirmed.
    Burkett, Orr & McCarty, of Eastland, and Ove E. Overson, of Eloydada, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was indicted in the Ninety-Second district court of Young -county, and tried and convicted in the Thirtieth district court of said county, for unlawfully transporting intoxicating liquor, and his punishment assessed at three years’ confinement in the penitentiary.

In bill of exceptions No. 1 complaint is made to the action of the court in overruling appellant’s motion to quash the indictment herein, because it is contended that the act of the Thirty-Eighth Legislature (Acts 1923, c. 76) creating the Ninety-Second district court for a term of only two years was in violation of the state Constitution (article 5, § 7), which provides that the district judge shall hold his office for four years, and because said act of the Legislature did not provide that said court had the authority to impanel a grand jury, and for that reason that said indictment was defective and said motion should he sustained, and other points raising the same question practically as above as to the jurisdiction of said court. We are unable to agree with appellant’s counsel in this particular, and are of the opinion that none of said reasons urged are tenable. In the case of St. Louis S. W. R. Co. v. Hall, 98 Tex. 480, 85 S. W. 786, the Supreme Court, through Justice Williams, in discussing the powers of the Legislature to create district courts, in the writer’s judgment decides all the contentions made by the appellant herein. In that case, in discussing the proposition, the court cites Lytle v. Halff, 75 Tex. 128, 12 S. W. 610, upon a contention made that, by reason of the Legislature’s creating a district court, and providing for only one term of said court in one county, same was void. The court states:

“It was also strongly intimated in that case that a provision prohibiting a district court from impaneling grand juries was unconstitutional as denying to that court a portion of the jurisdiction given to it by the Constitution over criminal causes, inasmuch as such jurisdiction over felonies could not he constitutionally exercised without the aid of grand juries. To this proposition we fully assent. It was, however, further held, in the ease cited, that this feature of the statute there in question did not affect the legality of the court established, but that, if it were in conflict with the Constitution, it would have to give way and leave the court in the full possession of its constitutional functions. The same reasoning disposes of most of the provisions of this statute which are attacked as unconstitutional. If the Legislature did enough to bring into active existence a district court, it was at once clothed with the powers conferred by the Constitution upon such courts, and any attempts in the act to unduly limit those powers must be treated as futile.”

This decision further holds that, although the Legislature in the case under discussion attempted to take away from that court the right to impanel grand juries, that portion of the statute was unconstitutional, and, when the court was constituted by the- Legislature, and put into existence, the Constitution gave it full power to impanel grand juries as an essential instrument to the exercise of its jurisdiction. The case supra is much stronger on the point urged than the instant case, in that in the instant case the appellant urges that, because the Legislature did not specifically state in the act creating this court that it had authority to impanel grand juries, such acts on its part rendered indictments from grand juries in said court void; while in the case supra the Legislature specifically attempted to withdraw from said court created the right to impanel grand juries, and the Supreme Court held that that portion of said act was unconstitutional, and the court so created had the power to impanel grand juries regardless of the act of the Legislature in that particular. The case supra also lays down the proposition that, when the Constitution does not prohibit the Legislature from doing certain things relative to creating district courts, the Legislature had the right to do any act which was not prohibited by-the Constitution.

In Walker v. State, 98 Tex. Cr. R. 663, 267 S. W. 988, this court, through Judge Hawkins, in discussing the jurisdiction of the Ninety-Second district court and the acts of the Legislature creating same, ruled against the contention urged by appellant herein. We think all of the authorities cited hold clearly against the contentions made by the appellant in. this case upon all the points urged against the court in failing to quash the indictment in question. Carter v. Mo., K. & T. Ry. Co., 106 Tex. 137, 157 S. W. 1169, announces same proposition of law.

It is also urged by the appellant for the first time in this court that this case should be reversed because there was no order upon the minutes of the Ninety-Second district court transferring this case to the Thirtieth district court, while the acts of the Legislature in creating said court provided that cases could be transferred from one of said courts to the other by written orders to be entered upon the docket and in the minutes of said court making such transfer. It is admitted by the appellant’s counsel that this case was tried in the lower court, and defendant there convicted, motion for new trial made, and appeal taken to this court, and for the first time this point was urged in this court.' We think, in the absence of any showing to the contrary, we would have to presume the case was properly transferred to the trial court. McCauly v. State, 97 Tex. Cr. R. 1, 259 S. W. 938; Richards v. State, 97 Tex. Cr. R. 448, 261 S. W. 587. In the Richards Case, supra, Judge Lattimore says:

“There is nothing in the record showing how the case came to be transferred. The burden would be upon appellant who asserts rhe illegality of the transfer to show it.”

These authorities, we think, hold against appellant’s contention.

There is also complaint made to the action of the court in refusing the defendant’s motion for continuance. The record fails to disclose any bill of exception to the action of the court in this particular, and for that reason we are not authorized to consider same. Branch’s Ann. P. C. § 304, citing Womack v. State, 74 Tex. Cr. R. 640, 170 S. W. 140, and many other authorities.

There is complaint urged in bill of exception No. 2 to the action of the court in refusing to quash the jury panel; it being alleged in the motion to quash- that the jury commissioners failed to comply with the law and requirements of the law relative to selecting said jurors and “handpicked same.”. Said bill fails to disclose any evidence whatever in support of said allegations made in said m'otión,' which'leaves this court without any way of determining whether the manner of selecting the jurors was regular or irregular, and, if any evidence was adduced in the lower'eourt, the record fails to disclose it. Without evidence, there would be nothing for the' court to pass upon, and, 'in-the absence of a bill showing manifestly the error complained of in this eourt, we are unauthorized to consider same. This court has repeatedly held that it would not consider bills of exception, unless the bills within themselves showed the error complained of. Cavanar v. State (Tex. Cr. App.) 269 S. W. 1063; Black v. State, 68 Tex. Cr. R. 151, 151 S. W. 1053; Branch’s Ann. P. C. § 206.

The appellant complains of the action' of the court in permitting the state to introduce a witness, and permitting said witness to testify after the evidence was closed. This bill fails to show what the witness testified to, and what has been said relative to bill No. 3 will apply to this bill. Besides, this court has repeatedly held that it is left to the discretion of the trial court relative to such matters, and, of course, unless the bill stated what the testimony was, this court would have no way of determining whether the trial judge abused his discretion or not, and will have to presume that such discretion was not abused, in the absence of any showing in the hill to the contrary.

In bill of exceptions No. 5 complaint is made to the action of the court in permitting the jury to smell of the bottle which the state contended contained whisky the defendant was transporting, because said bottle and li: quid were not properly identified, and because same had not been in the custody of the witness Howard, and was making witnesses out of the jury. The witness testified it was the same liquid, and that same was whisky, and that he turned same over to the sheriff, Cooper, and the sheriff testified that it was whis-ky, and that same had not been out of his possession. There was no evidence to the contrary. We are of the opinion that it was error for the jury to smell' the whisky in question, but in this case it was harmless. Lerma v. State, 81 Tex. Cr. R. 109, 194 S. W. 167.

Complaint is also urged, to the action of the court in refusing to charge the jury on circumstantial evidence. The state’s witness Howard testified to chasing the defendant in an automobile, and hearing him tell his wife While the chase was on “to break it, to break it,” and to seeing his wife with a hammer striking something in the rear of the car, and then throwing the sack with a broken gallon jug or bottle on the outside of the' car, which he immediately took in his possession, and arrested the defendant and his wife, and took them and said sack and bottle, and delivered them to the sheriff. The defendant produced no testimony upon the trial in refutation of any of the matters in controversy, and, under this state of facts, we áre of the opinion .that the court committed no error in refusing to charge on circumstantial evidence.

Complaint is made to the action of the attorneys representing the state in their argument to the jury. If the remarks of the state’s attorneys had been reversible error as set out in the bills, we think the qualifications made by the court, which became a part and parcel of the bill upon acceptance by the attorneys for the appellant, removed any question as to said remarks being reversible error, and for that reason we overrule the contentions therein made.

We have carefully examined the record and the propositions urged by appellant’s counsel in this case, and we fail to find any reversible error in the trial of this cause, and this ease is accordingly 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.

Upon the motion for rehearing the silence of the record with reference, to the manner of the transfer of this cause from the district eourt of the Thirtieth district to that of the Ninety-Second district is renewed. In the bill creating the Ninety-Second district court it is said:

“The jurisdiction of said new district court of Young county shall extend to and include all civil and all criminal cases. * * * ” Acts 38th Leg. (1923) c. 76, § 2.

In section 8 of the act it is said that the district judge, either in term time or in vacation, is given the authority to transfer cases. from the docket of the Thirtieth district court to' that of the Ninety-Second district court by' a written order entered upon the docket and in the minutes of said court; “and the clerk of said district court to which such cause or action shall have been so transferred shall duly enter such cause or action upon the proper docket of that court.” Had the attention of the trial court been directed to the absence of the order of transfer to the Ninety-Second district court before the trial, doubtless if the order had not been previously made, the eourt would not have permitted the trial to proceed until an order was received and entered.' The ease having proceeded to trial, and a verdict rendered without objection to the condition of the record as related to the transfer, this court, in the absence of an affirmative showing to the contrary by the record, will assume that the order of transfer was made. We are not impressed with the view that the matter is analogous to the rule which makes imperative an order of the transfer of the indictment to the county court before that court will acquire jurisdiction. See Walter v. State, 98 Tex. Cr. R. 663, 267 S. W. 988, and cases there cited. No grand jury is organized for the county court. All indictments are filed in the district court. Before the county court acquires jurisdiction/to try a case presented by an indictment, it is essential that by an order of the district court the indictment be transferred to the county court. There is no absence of jurisdiction in' the Ninety-Second district court to try any case of felony arising in Young county. The statute confers upon it that authority. There being another district court in that county with like jurisdiction, the transfer from one to the other, we think, cannot justly be said to be necessary to confer jurisdiction. It is a matter of procedure which is to be followed, and which, upon proper and timely demand, the court would not be warranted in ignoring. As the matter is presented by the present record, we are of the opinion that the motion for rehearing should be overruled, which is accordingly done. 
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