
    ROBINSON v. STATE.
    (No. 7057.)
    (Court of Criminal Appeals of Texas.
    June 14, 1922.
    Rehearing Denied Nov. 8, 1922.)
    1. Grand jury &wkey;>l I — Excusing from list certain men, and instructing sheriff to summon others, not error.
    -In excusing from the list of grand jurors certain men drawn thereon, and instructing the sheriff to summon others to take their places, there was no error, the law regarding the formation of a grand jury not being construed so that the trial court may not excuse from service on the grand jury citizens whose reasons as presented to the court appeal to his sound discretion, and are such as to justify his action.
    2. Witnesses <&wkey;>344 (2) — Refusal to permit proof that state witness registered at hotel as wife of man not her husband not error.
    In an intoxicating liquor prosecution, where there was no effort made to show the general reputation of a state witness, a refusal to permit defendant to prove that witness on one occasion registered at a hotel as the wife of a man with whom she stayed that night, who was not her husband, was not error.
    3. Criminal law <&wkey;>982 — Refusal to submit issue of suspended sentence not error, where defendant 50 years of age.
    Where the charge against defendant was a violation of xthe amended Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 5SSV4a et seq.) for selling intoxicating liquor, and the proof showed he was a man 50 years of age, there was no error to decline to submit the issue of suspended sentence.
    On Motion for Rehearing.
    4. Indictment and information &wkey;>l37(2) — Attack on array comes too late when presented first on motion to quash indictment.
    In view of Code Cr. Proc. 1911, art. 409, which provides that any person, before the grand jury has been impaneled, imay challenge the array of jurors, and in no other way shall Objections be heard, and article 412 names as a ground of challenge to the array that persons summoned as grand jurors are not in fact persons selected by the grand jury commissioners, an attack on the grand jury comes’ too late when presented for the first time on motion to quash the indictment, where no showing was made that defendant was deprived of a right to make the attack by challenge in limine.
    Appeal from District Court, Eastland County; E. A. Hill, Judge.
    R. R. Robinson was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Chastain, Judkins & Chastain, of Eastland, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Eastland county. of the offense of selling intoxicating liquor, and his punishment fixed at confinement in the penitentiary for one year.

We are unable to agree with appellant’s contention as set forth in his bill of exceptions No. 1 that the trial court committed error in excusing from the list of grand jurors certain men drawn thereon, and in instructing the sheriff to summon other men to take the places of those so excused. We do not think the law regarding the formation of a grand jury should have such rigid and inflexible construction as that the trial court may not excuse from service on such grand jury citizens whose reasons as presented to the court appeal to his sound discretion and were such as to seem to justify such action. Garrett v. State, 66 Tex. Cr. R. 480, 146 S. W. 930.

Appellant complains by his bill of exceptions No. 2 of the introduction in evidence of his confession. We find nothing in said bill of exceptions in any way substantiating appellant’s objections as stated to the reception of such confession. The officer who took same testified that he gave the defendant a warning, apparently in the terms, of the statute, and that after said warning was given the accused proceeded to make the statement introduced in evidence. A statement in the bill of exceptions that said confession was extorted by threats of personal violence would not appear to be sustained, in the absence of some showing in said bill of said fact further than the statement thereof by appellant’s counsel in stating the ground of his objection.

We do not believe any error appears in bill of exceptions No. 3 which complains of the refusal of the trial court to permit appellant to prove that a state witness on one occasion registered at a hotel as the wife of a man with whom she stayed that night, who was not her husband. There is ho effort made to show the general reputation of said witness, or to attack her in any way except by an attempt to prove the isolated matter just mentioned. McIntosh v. State (Tex. Cr. App.) 239 S. W. 622.

Appellant has two bills of exception complaining of the argument of the state’s attorney. We have carefully examined each of said bills, and find nothing in same which in our opinion would call for a reversal of this case.

There was no error on the part of 'the trial court in declining to submit to the jury the issue of suspended sentence. The charge against appellant was a violation of the amended Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588(4 et seq.), and the uncontroverted proof in the case showed he was a man 50 years of age. The benefit of suspended sentence in such case is denied by statute.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

When the Thirty-Seventh Legislature (1st Called Session, c. 61, p. 233) amended the law relative to intoxicating liquors, it provided in section 2 that—

“No person over twenty-five years of age convicted under any of the provisions of this act shall have the benefit of the Suspended Sentence Law.” (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a4.)

Appellant attacks this provision as being discriminatory and in violation of section 3 of the Bill of Rights, and criticizes our opinion for not discussing the constitutionality of the act. He presents an interesting and persuasive argument, but favors us with no authorities supporting his position. The identical question was passed upon in the case of Pearl Davis v. State (No. 7127, opinion November 1, 1922) 245 S. W. -, holding against the contention.

Appellant urges that in disposing of his assigned error for the trial court’s refusal to quash the indictment because of alleged illegality of the grand jury we misapprehended the bill of exception presenting the question. The bill makes it clear that after excuses and exemptions had been passed upon there remained 12 legally qualified grand jurors who had made no excuses and claimed no exemptions, and who had been drawn by the jury commissioners; that the trial judge stated he wanted more grand jurors from Ranger and Cisco, as said towns were not properly represented; 2 of the 12 remarked if the court intended to excuse any of the grand jurors, they had important business and would be glad to be excused, whereupon the two were excused, and the judge requested the sheriff to summon 1 juror from Ranger and 1 from Cisco to fill out the grand jury. The bill shows that 2 others were summoned, but fails to show whether they were secured from Ranger and Cisco. Appellant’s ground for seeking to quash the indictment was that the grand jury as organized with the two last summoned men upon it was not selected by the jury commissioners, and therefore was not a legally constituted grand jury, and therefore their act in returning the indictment was “illegal, null and void.*- •

It may be conceded that the impanelment of the grand jury was irregular in a respect which, if properly and timely taken advantage of, would have availed appellant. Article 409, C. C. P., provides that — ■

“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.”'

One ground for challenge to the array- is (article 412, C. C. P.):

“That the persons summoned as grand jurors are not, in fact, the persons selected by the jury commissioners.”

We are not advised by the bill of exception that appellant sought to challenge the array, or that he was'deprived of the opportunity to present such challenge. It was the evident purpose of the Legislature in enacting article 409, supra, to place certain limitations of time on attacks upon the organization of the grand jury. Since the Carter Case (39 Tex. Cr. R. 345, 46 S. W. 236, 48 S. W. 508; Id., 177 U. S. 442, 20 Sup. Ct. 687, 44 L. Ed. 839) some confusion has arisen over the subject. The opinion of the Supreme Court of the United States in said case makes it clear, we think, that said court recognized the validity of article 409 of our Code, of Procedure, but based its holding on the fact that said article had no application in the case because the grand jury that indicted Carter had been organized before the commission of the alleged offense by him, and therefore he could not have availed himself of the right to challenge the array. The distinction seems to have been overlooked in Smith v. State, 42 Tex. Cr. R. 220, 58 S. W. 97, but was adverted to in Kipper v. State, 42 Tex. Cr. R. 613, 62 S. W. 420, and was recognized and discussed in McCline v. State, 64 Tex. Cr. R. 19, 141 S. W. 977. The validity of article 409, supra, has been recognized by this court in many cases which will be found collated in the notes under said article in 2 Vernon’s Criminal Statutes. We are inclined to the view that an attack such as here made upon the grand jury comes too late when presented for the first time upon motion to quash the indictment, where no showing is made that appellant was deprived of a right to make the attack by challenge in limine. Neither do we regard this holding in conflict with our decisions to the effect that the acts of purported grand juries composed of more or less than 12 men may be attacked even after conviction for that such bodies are not in fact grand juries, but are attempting to function as such, in violation of article 5, § 13, of the state Constitution. In the recent cases of Russell v. State (Tex. Cr. App.) 242 S. W. 240, Saulter v. State (Tex. Cr. App.) 242 S. W. 242, and Acuff v. State (No. 7175, decided November 8, 1922) 244 S. W. 1117. Article 409, C. C. P., was not considered, and the opinions were based upon the fact that the jury commission itself, which selected the grand jury, was appointed at a time not authorized by the-statute.

For the reasons given, we conclude the motion for rehearing should be overruled; and it is so ordered. 
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