
    BENNETT v. STATE.
    (No. 7493.)
    (Court of Criminal Appeals of Texas.
    Jan. 3, 1923.
    On the Merits May 23, 1923.
    Rehearing Denied Oct. 17, 1923.)
    On Application for Certiorari.
    1. Criminal law &wkey;>l I I0i(8)— Certiorari granted to correct errors in transcript.
    Certiorari granted to correct errors in the transcript due to clerk’s fault, appellant asserting it to be impossible to brief his case in the present condition of the record.
    On the Merits.
    2. Jury &wkey;>70(8)— May be selected for special term by sheriff when there was not time for appointing jury commissioners.
    When, because of lack of time merely, jury commissioners for a special term of the district court, called under Code Cr. Proe. 1911, art. 94, have not been appointed, the jury for such term may be selected by the sheriff.
    
      3. Criminal law &wkey;>982 — Defendant, over 25 years old, convicted of violating Dean Law, not accorded suspended sentence.
    In prosecution for violation of the Dean Law, a defendant over 25 years old cannot be accorded the suspended sentence.
    4.'Criminal law &wkey;l09f (5) — Bill of exceptions held not to overcome presumption of correctness of exclusion of evidence.
    A bill of exceptions to exclusion of a statement, not showing its contents, nor indicating the relevancy or materiality of the matters inquired about, does not overcome the presumption of correctness of the ruling.
    5. Criminal law <&wkey;>I09I (4) — Bill of exceptions should support by recital of facts objection that admitted confession was not voluntary.
    The objection to the admission of the defendant’s written confession that it was not voluntary should he supported by recital offsets in the bill of exceptions.
    6. Criminal law <&wkey;530 — Defendant affected by preliminary státement in his signed-confession.
    The preliminary statement in 'defendant’s confession, that it was a “voluntary statement of * * *■ (defendant) made to me, * * * county attorney,” being a part of the document, signed by defendants, his contention that it does not affect him, but is a mere ex parte statement of the county attorney,-is unsound.
    7. Criminal (aw &wkey;507(f) — Buyer of intoxicating liquor-not accomplice of seller.
    By provision of Acts 37th Leg. (1921) 1st Called Sess. c. 61, § 2c (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a3), the buyer of intoxicating liquor is not an accomplice of the seller.
    8. Intoxicating liquors <&wkey;239(2) — No reason under evidence for instructing on delivery.
    Under evidence on prosecution for selling intoxicating liquor, there being no affirmative testimony that delivery was not made, held, there was no reason for an affirmative charge singling out and instructing on the question of delivery.
    9. Criminal law <&wkey;78l (3) — Charge that confession alone will not support conviction unnecessary in view of independent proof.
    Where the facts showing commission of the offense and defendant’s connection therewith were proved independently of his confession, it was not necessary to give his requested charge that his confession alone would not support a conviction.
    10. Criminal law <&wkey;>535(2) — Corpus delicti need not be established by evidence independent of confession.
    Independent evidence need not establish the corpus delicti; but it is enough that such evidence with the confession does so.
    11. Crimina! law <&wkey;l092(l I) — Objection to argument not verified' by court as fact insufficient to disclose error.
    Objection to comment on testimony by the county attorney in argument that it referred to a matter excluded, and did not properly quote the testimony, not being verified by the court as a fact, is insufficient to disclose error.
    12. Criminal law <&wkey;723(3) — Argument as to •responsibility of jury if law breakers were turned loose unobjectionable.
    There is no vice in argument of county attorney to the effect that he could put issues of fact before the jury, but the responsibility would be on them if law breakers were turned loose.
    13. Criminal law <@=>103-7(2) — Argument held not to require'reversal in absence of request for charge to disregard!.
    For county attorney in argument, after saying Tie thought there were bad conditions brought on by jurors violating their oaths and failing to convict lawbreakers, to conclude that, if-the jury wanted to continue in this course, they need not be alarmed at the cluck of the Klansmen, if improper, does not require reversal, at least in absence of request for special charge to disregard.
    14. Criminal law <@=>1091 (8) — Bill of exceptions should shoiv remarks in argument were not based on evidence.
    Bill -of exceptions complaining of the county attorney seeking'to explain in argument why another case against' defendant for selling intoxicating liquor was dismissed should show the remarks were not based on evidence adduced on the trial.
    On Motion for Rehearing.
    15. Jury &wkey;>79(8) — In absence of arbitrary disregard of provisions for selection of jury for special term by commissioners, no error in'selection by sheriff.
    Though it is better practice that jury, for special term of district court called under Code Or. Proc. 1911, art. 94, be drawn by jury commissioners, yet, there having been no arbitrary disregard of provision for commissioners, there was no error in having jury selected by the sheriff.
    Appeal from District Court, Montague County; C. R. Fearman, Judge. '
    Jack Bennett was convicted of violating the liquor laws, and he appeals.
    Certiorari to correct transcript granted, and judgment affirmed.
    Chancellor & Bryan, of Bowie, 'for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   On Application for Certiorari.

HAWKINS, J.

Appeal is from a conviction for selling intoxicating liquor, with ’ a penalty of two years in the penitentiary.

Appellant has filed application for certiorari to correct the transcript, pointing out many alleged mistakes and errors therein, and asserting that it is impossible for him to brief his case in the present condition of the record. The errors appear to be attributable to the carelessness of the clerk in preparing the transcript for this court. We must enjoin upon such officers more care in the preparation of records to the end that useless delays may be avoided.

The certiorari is granted as prayed for.

MORROW, P. J., absent.

On the Merits.

MORROW, P. J.

Conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The witness W. S. Cox is named in the indictment as the purchaser. According to his testimony, he made arrangements with the appellant to get a quart of whisky. After-wards, while appellant was riding in an automobile, Cox gave him a $5 bill. Appellant asked him where he put the whisky, and Cox replied that he put it in the pocket of the car. After riding several blocks more appellant got out of the car. Cox did not look in the pocket. The car was searched by the witness Walker, and a quart of whisky was found in. the pocket.

■ Appellant’s confession was introduced, in which he declared that he received $5 from Cox, and put the whisky in the pocket of the car at the place where it was found when the car was searched.

The first bill of exceptions refers to a motion to quash the jury panel. The jurors were summoned by the sheriff. The complaint made is that the trial judge purposely refrained from selecting the jury commissioners. The trial • took place at a special ferm of the court, convened on the 7th day of August, and called on the 15th day of July. It is admitted in the bill that the failure to have the jury commissioners select the jury for the special term was intentional, “because at the time it was determined to order a special term the end of the regular term was too near at hand to permit the assembling, of the jury commissioners to select the jury for the special term.” In our judgment the selection of the jury by the sheriff was, under the facts stated in the bill, not illegal.- The failure to select jury commissioners was not an arbitrary disregard of statute (article 384, Code Cr. Proc.), but the reason given by the court was deemed by him sufficient to justify his action, and, under the facts before us, we are not in a position to say that he was wrong. The cases relied upon (Woolen v. State, 68 Tex. Cr. R. 191, 150 S. W. 1165, and White v. State, 45 Tex. Cr. R. 597, 78 S. W. 1066) are not authority for the contention that in every case intentional failure to select a jury commission to select the jury for the succeeding term nullifies the power to select a jury by other means provided by law. The law now authorizes the calling of a special term even in vacation. Obviously the special term of court cannot function without a jury. The power vested in the judge to call such a term at any time necessarily implies that it is not demanded that jury commissioners must select jurymen for it. Speaking with reference to a grand jury in Ex parte Holland, 91 Tex. Cr. R. 344, 238 S. W. 656, we used this language:

“Under the present statute, in our judgment, a special term of the district court, when organized, has the same power and governed by the same procedure as a regular term. At a regular term, the preferred way of selecting a grand jury is by jury commissioners. This is emphasized in White v. State, 45 Texas Cr. R. 597, 78 S. W. 1066, and Woolen v. State, 68 Tex. Cr. R. 181, 150 S. W. 1165, to which we referred in the original opinion, and that method is not to be arbitrarily disregarded at a special term. But with this qualification article 399 of the Code of Criminal Procedure is, in our judgment, also available, and in this connection we will add that, in a case like the present, where it is not apparent that there wifi be need for a grand jury at the beginning of the term and there was good cause for not then appointing jury commissioners and causing a grand jury to be selected by them, and subsequent developments made a grand jury necessary, it might be selected by the sheriff in accord with article 399. See Ring v. State (Tex. Cr. App.) 234 S. W. Rep. 1107.”

In. prosecutions for violation of the so-called Dean Daw (chapter 61, Acts 37th Leg. 1st Called Sess. p. 233 [Vernon’s Ann. Penn. Code Supp. 1922, art. 588% et seq.]), one over 25 years of age cannot be accorded the suspended sentence. The validity of this provision has been asserted on several occasions by this court. See Davis v. State, 93 Tex. Cr. R. 192, 246 S. W. 396.

Inquiries were made by the state of the witness Cox concerning a purported statement previously made by him. The statement was excluded, and its contents are not revealed by the bill. Nothing in the bill indicates the relation of the matters inquired about to the case, nor their relevancy or materiality. Such a bill does not overcome the presumption indulged in favor of the correctness of the court’s ruling. See Buchanan v. State, 24 Tex. App. 195, 5 S. W. 847; Luttrell v. State, 14 Tex. App. 147; Vernon’s Tex. Crim. Stat vol. 2, p. 542, note 29. Also Vernon’s Tex. Crim. Stat. vol. 2, Supp. 1922, p. 2513, note 29; Marshall v. State, 85 Tex. Cr. R. 131, 210 S. W. 798.

The objection to the admission in evidence of the appellant’s written confession upon the ground that it was not voluntary is supported by no recital of the facts in the bill. The preliminary statement in the confession that it was a “voluntary statement of Jack Bennett made to me, Paul Donald, County Attorney,” is a part of the document signed by the appellant, and his contention that it does not affect him, but is an ex parte statement of the county attorney, is deemed unsound. Appellant having become a witness in his own behalf, proof by him on cross-examination that he was charged with other felonies was admissible upon the question of credibility. Branch’s Ann. Texas P. 0. § 167.

The purchaser of the intoxicating liquor was not an accomplice witness. The statute so declares. See chapter 61, Acts 37th Leg. 1st Called Sess. § 2c.

In his confession the appellant admitted that he sold the witness Cox a quart of whisky for $5; that he received the money and put the whisky at a certain time in the right-hand pocket of Cox’s automobile, at which place, while he was riding with Cox, he was told to put it. Cox testified that .he bought the whisky and told the appellant to put it at the place mentioned, and it was shown by the sheriff that almost immediately after the appellant got out of the car it was searched by the sheriff, and the bottle of whisky was fouhd at the point named. Cox testified that he made no examination of the pocket, and did not know whether the whisky was there or not. There was no affirmative testimony that the delivery of the whisky was not made, and we discern no reason for an affirmative charge singling out the question of delivery and instructing the jury upon it. The refusal of the request to do so was not error. The voluntary character of the confession was made an issue of fact and submitted to the jury under an appropriate charge.

A special charge wa.s requested seeking to have the jury told that the appellant’s confession alone would not support a conviction; that there must be other facts corroborative of the confession. In the instant case, the facts showing the commission of the offense and appellant’s connection with it were proved independent of the confession. Some of the facts were circumstantial. They were nevertheless sufficient to establish the corpus delicti. The law does not demand that independent evidence shall establish the corpus delicti. It merely requires that the evidence independent of the confession, together with the confession, shall do so. Kugadt v. State, 38 Tex. Cr. R. 694, 44 S. W. 989; Sowles v. State, 52 Tex. Cr. R. 17, 105 S. W. 178; Branch’s Ann. Tex. P. C. p. 1049; Ingram v. State, 78 Tex. Cr. R. 559, 182 S. W. 296; 16 Corpus Juris, p. 1514. In a case where the corpus delicti is proved by the confession alone, no conviction should be had. It is possible that a case might arise in which such a charge as that demanded by the appellant in the instant case should be given. Upon the record in hand, there was no error in refusing it. Mathews v. State, 39 Tex. Cr. R. 555, 47 S. W. 647, 48 S. W. 189; Gallegos v. State, 49 Tex. Cr. R. 115, 90 S. W. 492; Willard v. State, 27 Tex. App. 386, 11 S. W. 453, 11 Am. St. Rep. 197; Slade v. State, 29 Tex. App. 381, 16 S. W. 253; Franks v. State (Tex. Cr. App.) 45 S. W. 1013; Tidwell v. State, 40 Tex. Cr. R. 38, 47 S. 466, 48 S. W. 184; Bailey v. State, 42 Tex. Cr. R. 289, 59 S. W. 900; Nelson v. State (Tex. Cr. App.) 65 S. W. 95; Murphy v. State, 43 Tex. Cr. R. 515, 67 S. W. 108; Ellington v. State, 48 Tex. Cr. R. 160, 87 S. W. 153.

In his argument to the jury the county attorney made some comments upon the testimony of the witness Cox. Objection was made that they referred to a matter excluded by the court, and that the testimony was not properly quoted. This is a mere objection, not verified by the court as a fact, and is insufficient to disclose error. We perceive no vice in the argument of the county attorney to the effect that he could put issues of fact before the jury, but that, if lawbreakers were turned loose, the responsibility would be upon them. The county attorney in substance said that he thought there were conditions in the county brought on by the jurors violating their oaths, and in failing to convict violators of the law, and thereby increasing the commission of crime. He concluded with this statement:

“If you want to continue to add to this hoard and crowd back into society those who have been arraigned and indicted for law violations in this county, you need not be alarmed at the cluck of the Klansmen.”

If improper, the argument does not impress us as one requiring a reversal of the judgment, especially in the absence of a request for a special charge that the jury be instructed to disregard it.

In another bill it is asserted that the county attorney in' his argument sought to explain why the case against the appellant charging him with selling whisky to Dr. J. P. Thomas was dismissed. It does not appear from the bill that the remarks were not based upon the evidence adduced upon the trial. See Marshall v. State, 85 Tex. Cr. R. 131, 210 S. W. 798.

Finding no error in the record justifying a reversal, an affirmance of the judgment is ordered.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists with great earnestness both in his motion and upon oral argument that we were- in error in sustaining the action of the trial court in refusing to quash the jury panel because summoned by the sheriff instead of having been drawn by jury commissioners.

In 1905 the Legislature authorized district judges to call special terms of court at any time by them deemed advisable. See article 94, O. C. P. 1911. Prior to that time special terms of court could only be called by an order entered during the then regular term. Article 1114, R. C. S. 1895. The law at that time provided that the jury commissioners for the regular term during which the special term was ordered “shall, under the instruction of the court, select a regular venire for each week of such special term,” etc. Article 1117, R. C. S. 1895. Then and now the statute providing for selection of juries for regular terms of' court provided that “the district court of each county shall at each term thereof appoint” jury commissioners (article 5122, R. C. S.), and that “the jury commissioners shall select.” etc., the jury for the next regular term of court (article 5135, R. C. S.). When the Legislature in 1905 changed the law as to special terms, realizing that a call therefor could be made at any time, and that grand juries and petit juries would he necessary, it provided that the judge at such special term “may appoint jury commissioners, who may select and draw grand and petit jurors,” etc. Article 94, C. C. P. We call attention to the change in the language used from “shall” to “may” without determining at this time whether any particular signficance should be attached to it. Appellant relies principally, as we understand from his brief, on White v. State, 45 Tex. Cr. R. 597, 78 S. W. 1066, and Woolen v. State, 68 Tex. Cr. R. 189, 150 S. W. 1165. All either of these eases hold is that a judge may not arbitrarily ignore the statute regarding the selection of juries. In the opinion in Woolen’s Case this language does appear:

“Wherever the Legislature has provided the method .and means by which a jury may or must be selected, the judiciary is not authorized, because of some idea they may entertain of expediency or saving of cost or expense, to abrogate and set aside the plain provisions of statutory enactment.”

We are in harmony with the general principles announced; but it must be borne in mind that the great jurist who wrote that opinion was construing different articles of the Code of Criminal Procedure and Revised Civil Statutes than that now under consideration, which is article 94, C. C. P. In Ex parte Holland, 91 Tex. Cr. R. 339, 238 S. W. 656, referred to in our original opinion, we had before us the question of a grand jury, but it necessitated a , construction of said article 94. In the opinion on rehearing will be found this language:

“We feel constrained to adhere to the conclusion expressed in the original opinion that the method of selecting grand and petit jurors mentioned is not exclusive, but is cumulative of other provisions of the statute pertaining to the selection, impaneling, and organization of grand and petit juries in district courts.”

We understand from the learned trial judge’s qualification to the bill bringing the matter forward for review that the reason he did not appoint jury commissioners was lack of time. The order calling the special term for August 7th was made on July 15th, the last day of the regular term. It would hardly have been practicable to appoint jury commissioners and expect them to report before the adjournment of the regular term. The special term convened on August 7th, and this ease was tried the same day. To have appointed jury commissioners after the special term convened to draw a jury which would have been available. for the trial of appellant would have resulted in delaying the dispatch of business of the court. We have said this- as bearing upon the question that no arbitrary disregard is shown of the provision authorizing the selection of juries at special terms of district courts by jury commissioners, and that in our judgment no error is shown whatever construction may be given article 94 of the Code of Criminal Procedure.

We again venture the suggestion contained in Ex parte Holland, supra, that, where special terms of court are held, much the better practice is to have both grand and petit jurors drawn by jury commissioners. This method is expressly authorized by the article of the statute under consideration, and to so select them would relieve the record of any question.

The motion for rehearing is overruled. 
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