
    SHEPPARD v. STATE.
    (Court of Criminal Appeals of Texas.
    May 29, 1912.)
    1. Indictment and Information (§ 137)— Mode of Making Objections — Composition of Grand Jury.
    An objection to the competency of a grand juror is not properly raised by a motion to quash at the trial, especially where no evidence in support of the motion is produced.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. § 137.]
    2. Criminal Law (§ 1120) — Appeal—Reservation of Grounds of Review.
    A bill of exceptions to the exclusion of a question asked a witness raises no question for review, where it does not state what answer he would have given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    3. Indictment and Information (§ 133)— Mode of Making Objections — Composition of Grand Jury.
    On a trial, after the overruling of a motion to quash an indictment, a question asked the foreman of the grand jury, who was a witness for the state, for the purpose of showing that he was not a qualified grand juror, was properly excluded.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 454-468; Dec. Dig. § 133.]
    4. Criminal Law (§§ 419, 420) — Evidence —Hearsay.
    A question asked accused as to what a constable told him that the prosecuting witness said was properly excluded as hearsay, especially where the constable, although a witness for accused, was not asked regarding such matter.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    5. Criminal Law (§ 1090)— Appeal — Reservation of Grounds of Review.
    Grounds in a motion for new trial, based on alleged bills of exception to the introduction of testimony, cannot be reviewed, where the bills do not appear in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2789, 2803-2827, 2927, 292S„ 2948, 3204; Dec. Dig. § 1090.]
    Appeal from District Court, Hunt County; R. L. Porter, Judge.
    A. D. Sheppard, was convicted of forgery, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was charged with the offense of forgery.

When the case was called for trial, appellant filed a motion to quash the indictment, alleging that R. E. Shipp, foreman of the grand jury which returned the indictment, was not a qualified voter in Hunt county at the time he served as foreman of the grand jury, in that he moved from Hunt county to Grayson county for eight or nine months, and had returned to Hunt county only a short time' before the convening of the term of court at which he served as foreman of the grand jury. This motion was not sworn to by appellant or any other person, and no evidence offered in support of the facts alleged at the time the motion was presented. Inasmuch as there was no evidence adduced on the motion, at least none presented to us, we cannot presume that the allegations of an unsworn plea are true; but the presumption would be that the grand juror was qualified, and the burden would be upon defendant to show that he was not a qualified juror. The question is not properly raised by the plea filed under the holdings of this court. For a discussion of this question, see Woods v. State, 26 Tex. App. 506, 10 S. W. 108; and in the case of Lienburger v. State, 21 S. W. 603, the question attempted to be raised by appellant is decided adversely to his contention.

After the motion to quash had been overruled, and the case was being tried, R. E. Shipp was called as a witness for the state, and, on cross-examination of the witness, he was asked: “At what time in the fall of 1910 did you sell your home in Greenville and move to Grayson county, and what time did you and your family move back to Hunt county?” To which question the state objected, and when the objection was sustained by the court, the bill recites, “defendant excepted, and still excepts, and here tenders his bill of exception.” What the answer of the witness would have been, had he been permitted to answer the question, is not stated in the bill; and therefore nothing is presented for review. Love v. State, 35 Tex. Cr. R. 27, 29 S. W. 790. If it was intended by this question to sustain the plea to the indictment, this evidence ought to have been offered when the motion to quash was being considered, and not during the trial of the case on its merits.

While defendant was on the stand testifying in his own behalf, appellant’s attorney asked him: “After you had sent your claim for $25 to the constable at Lone Oak for collection, what was the report the constable made to you as to what John Bryant said?” John Bryant and the constable, Biard, were both witnesses, the constable being a witness for the defendant, and he might have proved by Constable Biard what the prosecuting witness Bryant had said; but he could not prove by appellant what Biard told him Bryant had said. This would be hearsay pure and simple.

In bill No. 4 the answer of the witness to the question alleged to have been propounded is not stated in the bill; therefore nothing is presented for review, as the bill is insufficient in that respect. Section 1123, White’s Annotated Code of Criminal Procedure.

These are all the bills of exception in the record, and the grounds in the motion for new trial, based on alleged bills of exception Nos. 5, 7, 8, and 9, cannot be considered, as there are no such bills; and, where there is no exception to the introduction of testimony reserved, we cannot review the action of the trial court in these respects.

The judgment is affirmed.

PRENDERGAST, J., not sitting.  