
    (86 Tex. Cr. R. 434)
    WRIGHT v. STATE.
    (No. 5494.)
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1919.)
    1. Infants <&wkey;13 — Prerequisites to conviction OF PERMITTING MINOR TO FLAY POOL OR BILLIARDS.
    That the owner of a billiard hall may be guilty of permitting a minor to play pool or billiards therein, it is necessary that he must have known the minor played and permitted him to do so.
    2. Grand jury &wkey;> 12 — Statute authorizing SUMMONING OF TALESMEN INAPPLICABLE ON ABSENCE OF JUROR AFTER JURY IMPANELED.
    The statute authorizing the court to summon talesmen in the original organization of the grand jury does not apply to a discharge of or to the absence of one of the grand jurors after the body has been impaneled.
    3. Grand jury <&wkey;12 — Effect of impaneling TALESMEN AFTER ORGANIZATION AS INVALIDATING INDICTMENT.
    Where the grand jury took a recess from the 17th of January to the 17th of February, and on January 23d were reconvened by the court, ten of the jurors only responding to the call, that the court summoned other citizens to take the place of the two absent jurymen invalidated the organization of the grand jury, and an indictment found by the jury when so organized was a nullity.
    Appeal from HiE County Court; R. T. Burns, Judge.
    J. H. Wright was convicted of permitting a minor to play pool and bilEards in his billiard hall, and he appeals.
    Reversed, and prosecution ordered dismissed.
    Dupree & Crenshaw, of Hillsboro, for appellant.
    C. M. Cureton, Atty. Gen., and W. J. Townsend, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted for permitting a minor to play pool or billiards in his billiard hall.

The evidence shows that the minor played a game in appellant’s pool or billiard hall; that the minor was about 20 years of age; that appellant did not have the consent of the parents of the boy that he might play in such billiard or pool hall. The evidence does not show and is silent as to the fact that appellant was present when the boy played in the pool hall, or that he had any knowledge of it.

The state cites us to Rainbolt v. State, 49 Tex. Cr. R. 427, 93 S. W. 737, to support the conviction. In that case the evidence shows that the playing was in Rainbolt’s place of business with his knowledge and consent. In Stark v. State, 71 Tex. Cr. R. 560, 160 S. W. 454, the minor played with Stark’s knowledge and consent, and he accepted pay from the minor for playing the games. Those cases do not support the contention of the state.

The appellant’s contention is that in order to make him responsible he must have known the minor played and permitted the boy to play the game. *This contention is supported by Brown v. State, 49 Tex. Cr. R. 419, 93 S. W. 723; Stuart v. State, 60 S. W. 554. The state’s evidence is not sufficient to show that the minor played -the game with the permission or even with the knowledge of appellant. Why this was not shown is not explained in the record. The boy testified and could have known if appellant was present and knew that he was playing the game, and facts could have been adduced that would put appellant present. If appellant was not present and the boy played the game in his absence without his knowledge or consent, this could not be held to be by his permission.

There is a question suggested why the indictment is invalid. The record in this connection briefly shows that the grand jury, with the permission of the court, took a recess from the 17th of January to the 17th of February. In the meantime, on January 23d, the court reconvened the grand jury. Ten of the number only responded to the call. The court instructed the sheriff to summon other citizens to take the place of the two absent grand jurymen. This was done, and they were impaneled with the grand jury, and that body thus constituted returned .the bül of indictment herein. It is shown that they participated in the action of the grand jury and were present and acted as such grand jurymen and weré a constituent part of the grand jury in finding the indictment. Thi.v identical question was decided in Ex parte Love, 49 Tex. Cr. R. 475, 93 S. W. 551. The matter there was pretty thoroughly discussed and the decisions and the law quoted and cited. It was there said:

“This seems to be the well-settled rule by the decisions of this court, and it is laid down that neither the grand jury nor the court can excuse a member of the grand jury after it has been legally organized, and the power of the district court is limited to a discharge of the entire grand jury. It would follow, therefore, that the action of the court in excusing Hatchett was a nullity; that he was stiU a member of the grand jury; and it would further follow that the action of the court was equally invalid in undertaking to place Bagley on the grand jury. Bagley in no sense constituted a grand jury man, and was not authorized to sit with tho grand jury, and if lie had acted with that body in finding or presenting an indictment, the indictment would be a nullity.”

See, also, Smith v. State, 19 Tex. App. 95; Watts v. State, 22 Tex. App. 572, 3 S. W. 769 ; Drake v. State, 25 Tex. App. 293, 7 S. W. 868, Jackson v. State, 25 Tex. App. 314, 7 S. W. 872; Trevino v. State, 27 Tex. App. 372, 11 S. W. 447; Woods v. State, 26 Tex. App. 506, 10 S. W. 108; Matthews v. State, 42 Tex. Cr. R. 31, 58 S. W. 86.

In Drake’s Case, supra*, it was urged that, although the grand jury was legally impaneled, it was dissolved by the discharge of one of its members, who had removed beyond the jurisdiction of the court and had .acquired a-domicile in another state before indictment was presented, and that the 11 jurors remaining on the panel could not and did not constitute such a grand jury as was competent to present a legal indictment. This objection was overruled and the point held not well taken. In that case, as in Ex parte Love, supra, the contention was made that the indictment was presented by a grand jury whose organization and autonomy had been completely destroyed by its own action in excusing one of its members from further service during the term; in other words, that the indictment was presented by a grand jury which was composed of only 11 jurors, and therefore violative of the Constitution, and the indictment was a nullity. The court held that such objection was not tenable, because of a want of authority to permanently excuse from service one or more of the grand jurors after its organization, either in the court or in the grand jury itself; and the action of the grand jury in excusing the juror was a nullity, and such action did not operate to discharge him. The same rule has been laid down by the decisions with reference to the action of the court in excusing members .of the grand jury. The fact that only 10 of the grand jurors assembled did not destroy its autonomy, as a grand jury having 9 members present could return a bill. In any event it is clear that under the law and the decisions, after the absent grand jury has been impaneled, the mere fact that a recess is taken, or for any other cause the court or the grand jury either excuse a member of that body, does not invalidate it. It continues its autonomy as such grand jury after being so impaneled. We are cited to the statute which authorizes the court to summon talesmen in the original organization of the grand jury as supporting the action of the court in this ease. The statute is not applicable. That is where the grand jury is being organized at the beginning of the term as such body. It has no application to a discharge or the absence of one of the grand jurors after the body has been impaneled. This doctrine is also adhered to in the ease of Leech v. State, 63 Tex. Cr. R. 339, 139 S. W. 1147.

We therefore hold that the indictment, for the reasons stated and under the circumstances depicted by this record, is a nullity.

The judgment is reversed, and the prosecution ordered dismissed. 
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