
    ANDERSON v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.
    Rehearing Denied May 28, 1913.)
    1. Grand Juey (§ 19)—1Qualification of Jurors—Objections—Time.
    Under White’s Ann. Code Cr. Proc. art. 397, declaring that any person, before the grand jury has been impaneled, may challenge an individual juror, and in no other way shall objections to the qualifications and legality of a grand jury be heard, disqualification of a grand juror cannot be raised by a plea in abatement to the indictment.
    [Ed. Note.—For other cases, see Grand Jury, Cent. Dig. §§ 53-55; Dec. Dig. § 19.]
    2. Criminal Daw (§ 686) — Trial — Reception of Evidence—Disceetion of Court.
    White’s Ann. Code Cr. Proc. art. 698, provides that the court may allow the introduction of testimony at any time before argument is concluded if the judge deems it necessary to the due administration of justice. Held',\that where, in a prosecution for violating the prohibitory law, the state rested without introducing the orders of the commissioners’ court putting local option in force in the county, it was proper for the court to call the attention of the state’s attorney to the omission privately and to allow him to subsequently introduce the record of proceedings, the effect of which was to put local option in force in the county.
    [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. §§ 1619, 1620, 1625, 1626; Dec. Dig. § 6S6.]
    3. Intoxicating Liquors (§ 239)—Wrong-ful Sale—“O coupation”—‘ ‘Business. ”
    In a prosecution for engaging in the occupation or business of selling intoxicating liquors in violation of the prohibitory law, an instruction that the terms “occupation” and “business,” as used in such law, meant trade, calling, or vocation in which one engages to procure a living or obtain wealth, was a sufficient definition of the term “occupation.”
    [Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 324-330; Dec. Dig. §
    
    For other definitions, see Words and Phrases, vol. 1, pp. 915-926; vol. 8, pp. 7593, 7594; vol. 6, pp. 4907, 4908.]
    Appeal from District Court, Navarro County; I-I. B. Daviss, Judge.
    D. J. Anderson was convicted of engaging in the business of selling intoxicating liquors, and. he appeals. Affirmed.
    W. W. Ballew and McClellan & Prince, all of Corsicana, 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
    
   HARPER, J.

Appellant was indicted at the October term, 1911, of the district court of Navarro county, charged with pursuing the business or occupation of selling intoxicating liquors in violation of the prohibition law in July, 1911.

The record discloses that he had theretofore been bound over to await the action of the grand jury. The case was continued one term of the court, and at the second term appellant filed a plea in abatement alleging that one member of the grand jury was not a qualified juror. It may be said that the evidence would show that Mr. C. W. Edgar was not a landowner, and lived with his children; but we are of the opinion that the objection came too late. See article 397 of the Code of Criminal Procedure and cases thereunder cited.

Article 698 provides that the court may allow the introduction of testimony at any time before the argument is concluded, if he deems it necessary to the due administration of justice; consequently there was no error in the court permitting the orders of the commissioners’ court to be introduced in evidence after the state had announced it closed. It may be that the judge called the attention of counsel for the state to this omission as contended by appellant, yet if he did do so the hill itself would show that it was done privately, and the jury knew nothing of the matter.

The state introduced the orders of the commissioners’ court, the certificate of the county judge, etc., showing that local option or prohibition was legally adopted in Navarro county in 1904. The defendant then introduced an order of the commissioners’ court showing that another election was held on June 15, 1907, and the order dated June 26, 1907, declaring the result of said election, in which order it was shown that in declaring the result the commissioners’ court stated that prohibition had been defeated by a majority of 12 votes. The state in rebuttal then offered in evidence the orders of the commissioners’ court made in March, 1909, in which orders it is recited that a contest of the election and of the declaration of the result thereof by the commissioners’ court was made June 26th in which it was declared prohibition had been defeated was instituted in the district court of Navarro county within the time provided by law, and the said contest resulted in a declaration by the courts of this state that prohibition had not been defeated, but had again been adopted in Navarro county at said election. The commissioners’ court then set aside its former orders declaring prohibition defeated, and in obedience to the orders of the court declared that a majority of the legal votes cast at the election held June 15, 1907, were cast in favor of -prohibition and all necessary orders and publications again made putting prohibition in force in Navarro county, Tex. In admitting these orders the court committed no error, and as the Court of Civil Appeals in the case of McCormick v. Jester, 53 Tex. Civ. App. 306, 115 S. W. 278, and Stockard v. Reid, 57 Tex. Civ. App. 126, 121 S. W. 1144, has so thoroughly discussed the questions raised herein on this issue, we do not deem it necessary to do so again. In those eases a writ of error was refused by our Supreme Court.

The court in defining occupation instructed the jury: “You are further instructed that by the terms ‘occupation’ and ‘business,’ as the same are used in this law and in this charge, is meant: The trade, calling, or vocation, in which one engages for the purpose of procuring a living or obtaining wealth. And you are instructed, in this connection, that the law requires that, before the defendant can be convicted, he must be shown by the evidence in this case to have made two or more sales, while so engaged in or pursuing said occupation or business.” This was a full and ample definition of the term “occupation,” and it was not necessary to give the special charges requested by appellant in regard thereto.

The evidence amply supports the verdict of the jury, and the court did not err in instructing the jury that prohibition was in force and effect in Navarro county.

The appellant has filed an able brief in this case; but, as all the questions discussed herein have been frequently passed on by the courts of this state, we do not deem it necessary nor proper to again review such matters at length. His motion to abate the indictment came too late. The indictment is drawn in terms frequently approved by this court. Prohibition is now and has been in force in Navarro county since the date of the election held in 1904.

Every issue raised by the evidence was fully and fairly submitted by the court, and the judgment is affirmed.  