
    HEMPHILL v. STATE.
    (No. 3248.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    1. Grand Juey (§ 19) — Challenge—Objections — Time.
    Code Or. Proe. 1911, art. 490, provides that any person, before the grand jury has been impaneled, may challenge the array or any person presented as a grand juror, and in no other way shall objections to the qualifications and legality of the grand jury be heard. Held, that where accused, a negro, was in jail when a grand jury was impaneled which returned an indictment against him, but made no request to challenge the grand jury, nor any objection thereto until the judgment rendered against him on the first trial had been reversed, it was then too late for him to move to quash the indictment because negroes were discriminated against in the selection of the grand jury.
    [Ed. Note. — Eor other cases, see Grand Jury, Cent. Dig. §§ 53-55; Dec. Dig. § 19.*]
    2. Jury (§ 120*) — Panei>-Motion to Quash —Discrimination against Negroes.
    A motion to quash a panel of special veniremen summoned to try a negro, on the ground that the negro race had been discriminated against, was unsustainable, where the only testimony was that of a jury' commissioner that no intentional discrimination against the negro race was made in the selection of jurors for the particular term of court, but that the members selected good men whom they personally knew to act as jurors.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 547-549; Dec. Dig. § 120.*]
    3. Criminal Law (§ 134*) — 'Venue—Change oe Venue — Prejudice oe Inhabitants — Evidence.
    In a prosecution for murder, evidence held to require a finding that accused could have a fair trial within the county, and that he was therefore not entitled to a change of venue for prejudice of the inhabitants.
    [Ed. Note. — For other cases, see Criminal I/aw, Cent. Dig. §§ 243, 251, 252; Dec. Dig. § 134.*]
    4. Criminal Law (§ 1092*) — Appeal—Bill oe Exceptions — Filing—Time.
    Code Cr. Proe. 1911, art. 634, provides that an order granting or refusing a change of venue shall not be revised unless the facts on which it is based are presented in a bill of exceptions filed at the term of court at which the order is made. Held, that such rule applies to all matters, not arising on the trial, and hence where bills presenting such matters are not filed at the term at which the proceedings occur, they cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834r-2861, 2919; Dec. Dig. § 1092.*]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Will Hemphill was convicted of murder, and he appeals.
    Affirmed.
    See, also, 165 S. W. 462.
    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.

This is the second appeal in this case, the death penalty being again assessed by the jury on this trial.

Appellant moved to quash the indictment, in his plea alleging that he is a negro, and that men of that race were discriminated against in the selection of the grand jury. The court heard evidence on this plea, and there was no proof offered tending to show that appellant is of that race, but if such proof had been offered, the evidence would wholly fail to sustain the plea. The evidence would show that there are some 3,000 white voters in the county, and only about 500 votes of the negro race, and of this latter class not over ten per cent, are qualified to serve as jurors, making only about 50 negroes in the county qualified to serve as jurors, while there are some 3,000 of the white race. The evidence further shows that at least one negro was drawn on the jury panel for the term of court at which appellant was indicted, and Mr. P. L. Herron, the only member of the jury commissioners placed on the witness stand, testified:

“We did not intentionally discriminate against the colored race in selecting the grand jurors and petit jurors at that time. I have no recollection of any discrimination at all. The judge told us to take our time for it, and we did. He said that he had got- tired of this quick jury business, to stay there until we got through. We did not intentionally fail or refuse to put a man on the grand jury simply on the ground that he was a negro, that I know anything about. The idea of the jury commissioners was to select the best and most responsible men from all over the county.”

Again, appellant was under arrest and in jail when the grand jury which indicted him was impaneled, and he made no request to be brought into court that he might challenge the array of grand jury men nor any member thereof. Neither did he on his first trial make any motion to quash the indictment on this or any other ground at this term of court; it being the third term of the district court of that county after this indictment had been returned before any such motion was filed. Under such circumstances the motion would come too late, as a motion to quash the indictment on this ground must be seasonably made — -when first presented an opportunity to do so. Article 409 of the Code of Criminal Procedure reads:

“Any person, before the grand jury has been impaneled, may challenge the array of jurors or any person presented as a grand juror; and, in no other way, shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall, upon his request, be brought into court to make such challenge.”

It is true, the United States Supreme Court has held that where one has had no opportunity to challenge the array before the impaneling of the jury, he may do so in a plea of abatement at the first opportunity, but in this ease appellant was not only in jail when the grand jury that indicted him was impaneled, and made no request to be brought into court to challenge the men selected to serve as grand jurors, but when arraigned for trial he made no such plea and did not question the qualification of the grand jury. It is only after he has been tried, convicted, appealed his case to this court, had it reversed, that he makes this plea on being rearraigned for trial; therefore the court did not err in refusing to quash the indictment

Appellant also moved to quash the panel of special veniremen summoned from which to select jurymen to try him at this term of court on the ground that the negro race had been discriminated against. One of the jury commissioners, Herman Zipp, testified:

“We did not intentionally discriminate against the negro race in the selection of jurors for this term of the district court, so far as I know, and we, did ' not fail or refuse to put a negro on the jury simply because he was a negro; that was not spoken about. I selected good men that I knew personally, and the other members of the commission selected men they knew, and I can’t state now whether there were any negroes on the lists they selected or not.”

There was no testimony offered which showed that the negro race had been discriminated against because of his race, and the court correctly overruled the motion.

Application was made praying for a change of venue. This was contested by the state, and testimony was heard by the court. Only two witnesses testify to a state of facts that would tend to support the plea, Mr. H. E. Short, one of the attorneys for defendant on the former trial, and a colored man named Walter Coleman. State Senator Harley, and Messrs. Emil Mosheim, W. P. Neubauer, Sam Patton, August Weinert — in fact all other witnesses introduced, except the two first named — testify that in their opinion appellant could get a fair and impartial trial in Guadalupe county, and under such a showing it would have been improper for the court to have granted a change of venue.

However, there is another matter we would call attention to. The term of court at which appellant was tried adjourned May 21, 1914. None of the above three bills of exception were filed during that term of court — in fact not filed until some weeks after court had adjourned. Article 634 of the Criminal Code provides:

“The order of the judge granting or refusing a change of venue shall not be revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term, of the court at which such order was made.”

The same rule applies to bills of exception to all matters excepting those relating to questions arising upon the trial of the case. Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263, and authorities there cited. We hope that attorneys hereafter will take cognizance of these provisions of the law, and file their bills of exception in term time, so that we will be authorized to grant relief should they be entitled to it. If they do not file them timely, we are powerless to grant any relief. .

There are but two other bills of exception in the record, and they relate to the failure of the court to give in charge special instructions Nos. 2 and 3 requested by appellant. The court gave charge No. 1, requested by appellant, and it and the main charge of the court fully covered all matters presented in the two refused charges. No objection was made to the charge of the court at the time it was given, and no exceptions appear in the record to evidence admitted or rejected on the trial.

The evidence supports the verdict, and the judgment will be affirmed.  