
    SMITH v. STATE.
    (No. 9801.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1926.)
    1. Grand jury <&wkey;9.
    Summoning of grand jurors by constable at special term proper, where sheriff was dead and statutes silent.
    2. Criminal law <&wkey;713 — Argument that law demanded death penalty for murder proper.
    Statements of state’s attorneys, in murder prosecution, that the mandates of law demanded death penalty, were not objectionable.
    3. Criminal law <&wkey;i798f/2, 1172(1) — Giving jury forms for verdicts in murder trial error, hut harmless.
    It was improper, in murder prosecution, but not reversible error, in absence of injury, for the court to give the jury forms for possible verdicts.
    4. Criminal law <&wkey;>890.
    Trial court should correct the form of a verdict, inline with article 773, Vernon’s Ann. Code Cr. Proc. 1916.
    
      Appeal from District Court, Brown County; J. O. Woodward, Judge.
    John Smith was convicted of murder, and he appeals.
    Affirmed.
    B. L. Palmer, of Houston, for appellant.
    Critz & Woodward, of Coleman, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMOR.E, J.

Prom conviction of murder in the district court of Brown county, with punishment fixed at death, appeal is taken.

The sheriff of Coleman county was killed by appellant on May 15, 1925. On the 18th of said month Hon. J. 0. Woodward, judge of the district court, convened a special term of his court, appointed jury commissioners, who drew a grand jury which returned the indictment under which this conviction was had in Brown county upon a change of venue.

Appellant attacks the legality of the grand jury, upon the ground that its members were summoned by the constable, and not by the shei-iff, as appears to be the direction of the statute in the impaneling of grand juries in the ordinary course of court procedure. The venire facias in the record shows that same was addressed, “To the Sheriff or Any Constable of Coleman County, Texas,” and commands the summoning of sixteen persons therein named to serve as grand jurors, which process was returned executed by Berry Bishop, constable of precinct No. 1 of said county. No complaint is leveled at the organization of the grand jury or the qualification of any of its members, save that they were thus summoned. The contention is without merit. The sheriff was dead. Jury commissioners regularly appointed had drawn a special grand jury- at a special term of the court. There is nothing in the statutes authorizing special terms of the district coui-t concerning the mode or method of summoning grand jurors then deemed necessary, nor under circumstances such as here appear.

Waiving the question as to appellant’s right to do more than file a challenge to the array such as is provided by statute, which right he had lost by not exercising same in time and manner as directed by law, we observe that the death of the sheriff could not be held to deprive a district court of its power to organize and function as is contemplated by the Constitution and laws of this state, and, it being necessary to have such body, and all steps prescribed by statute in obtaining same having been taken, it was entirely proper and legal to issue process in th,e form and manner as here appears, in order to obtain the presence and service of said grand jurors. In fact, if it appeared that the members of a grand jury, regularly drawn by a jury commission, had voluntarily appeared with or without process regularly issued or otherwise, and had been thereafter impaneled and functioned, in our opinion same would constitute a legal grand jury. Ordinarily those men so drawn would more expeditiously be obtained by some officer notifying them in pursuance of a specific duty, but at most the statute so indicating would be held directory, and, if the end desired and necessary to the oi-derly administration of the court’s function, viz. the presence of a grand jury properly drawn, had been obtained in some way not obnoxious to legal prescription, and especially in case of an unforeseen exigency as confronted the court here, this court would decline to declare such a grand jury illegal because summoned by some other peace officer than the sheriff.

Bills of exception Nos. 2 and 3 complain of argument of attorneys representing the state. In each bill it appears that said attorneys stated to the jury, in substance, that the law, “the mandates of the.law, demand and will not be satisfied with anything less than the death penalty in this ease.” We are not in accord with either complaint. The attorney representing the state had the right in a proper case to urge the infliction of the death penalty as punishment. The complaints mentioned, as certified by the court in his qualification, but present segments of the arguments in each case, and, in order to be fairly understood, 'the accompanying argument should be considered, both that for the state and the accused. If an attorney ask the death penalty on his own individual opinion and desire, he might therefor be criticised ; if he ask it in the name of the people or the state, this probably would be objected to, and we see no place left lor him to plant his fulcrum and lever save that same is demanded by the law and the facts or either-.

The remaining complaint is that the court gave to the jury, on slips of paper not connected with the charge, forms already prepared to fit whatever verdict the jury might return. Appellant insists that this may ha-ve in some way affected the veidict, may have suggested, aided, or encouraged the jury in a writing made by the judge, that the verdict find appellant guilty of murder with penalty fixed -at death. Adequate answer would be by saying that the judge also submitted a form of verdict of not guilty, and reason might suggest that one form had no more suggestive power than the other. We indicated in Hickox v. State, 253 S. W. 823, 95 Tex. Cr. R. 173, our disapproval and doubt as to the propriety of such practice. It is the duty of trial coui’ts to scrutinize with care the form of verdict returned by the jury and to correct same if not in form. This is in line with article 773, Yernons’ Ann. Code Or. Proc. 1916. Such care on the pai’t of trial courts would meet all requirements, and obviate complaints well founded or otherwise, such as the one now before us. If such matter is debatable, it would be our conclusion that expedients in criminal trials should be avoided when there exists room for doubt as to their propriety. Our conclusion is as expressed in Hicliox Case, supra, but we are still of opinion that there is no showing in this case of injury.

Finding no error in the judgment for which same should be reversed, an affirmance is ordered. 
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