
    ANDREWS v. STATE.
    (No. 6824.)
    (Court of Criminal Appeals of Texas.
    March 29, 1922.)
    1. Criminal law <§==342—Testimony by defendant before grand jury held not to bar prosecution.
    Where defendant testified before the February grand jury concerning the keeping of a disorderly house, and the September grand jury returned a true bill against him for the disorderly keeping of the same house, it not appearing that the defendant’s testimony resulted in the prosecution, was involuntary, or was used against him, it was proper to overrule a motion in bar of the prosecution.
    2. Witnesses <§=>'246(1)— Examination of defendant held proper.
    It is not error for the court on a motion in bar to examine defendant in order to clarify the issues where the questions propounded are not calculated to prejudice the jury against defendant.
    xlppeal from Howard County Court; James T. Brooks, Judge. ■
    Jess Andrews was indicted for keeping a disorderly house, his motion in bar was overruled, he was convicted, and he appeals.
    Affirmed.
    W. Carroll Barnett, Jr., of Big Spring, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Howard county of the offense of keeping a disorderly house, and his punishment fixed at a fine of $200 and 20 days in the county jail.

Appellant presented a motion in bar of his prosecution based on a claim that he was before the grand jury as a witness, and gave evidence, and by reason thereof was not subject to prosecution. The bill of exceptions reserved to the court’s action in overruling said motion sets forth that appel lant was called before the grand jury of Howard county at the February term, 1921, and that he was ashed about hauling women out to his house in December, 1929, and as to hauling men out to said house. The qualification of the trial court to this bill of exceptions is, in effect, that the demurrer of the state to appellant’s said motion in bar was sustained by the court. Referring to the said demurrer of the state, we observe that same appears to be a denial of the facts stated in appellant’s motion in bar, and an assertion of the fact that appellant voluntarily appeared before said grand jury in February, 1921, in reference to other matters, and that none of the testimony stated by him in his motion to have been given was in fact given. In this condition of the record the motion of appellant, contravened by the denial of the state, made an issue of fact in support of which appellant offered to introduce certain testimony in support of his said plea in bar. Said testimony is set out in a lengthy bill of exceptions, which is approved by the trial court. In said bill of exceptions it is made to appear that when before the February grand jury appellant testified that he hauled from Big Springs out to his house, the keeping of which as a disorderly house is the basis of the conviction in the instant case, certain named men, who appeared to have been used as witnesses against him on this trial. The bill further discloses that a number of the grand jurors made statements denying that appellant gave any testimony before them upon which the instant prosecution was based, and denying that they compelled him to answer any question relative to his connection with any crime, or that he was caused to give evidence in any way relative to such criminal enterprise. It was shown that the February grand jury was not investigating or concerned with any violation of the law in any wise connected with this appellant.

In this condition of the record it would appear that the trial court, after considering the evidence offered by appellant in support of his motion in bar, concluded that the motion was not supported. Reviewing the offered testimony as contained in said bill, we are unable to conclude that there was error in this conclusion of the trial court. No indictment was returned against appellant by the February grand jury. The instant indictment was returned by the September gran'd jury. We find nothing in the record to indicate that any of the testimony given by appellant before the February grand jury was involuntary, or that same was attempted to be used against appellant in any way, nor is it made to appear that the instant criminal action and proceeding was brought against appellant as the result of any testimony given by him before the February grand jury.

Appellant has a bill of exceptions to the action of the trial court in himself questioning appellant at the time the issue was joined between appellant and the state upon the motion in bar of the prosecution heretofore discussed. We have carefully examined the three questions propounded by the trial court, but find nothing in same that are suggestive, or that were in themselves calculated to prejudice the rights of the appellant before the jury, even if it were shown that the hearing upon this preliminary motion of appellant’had taken place after the impaneling of the jury to try the instant case, which latter fact is not certified to by the trial court and does not appear. The form of said three questions as originally stated by appellant in his bill of exceptions No. 3, is not approved by the trial court in his approval of said bill. The statement of said questions which appears in the qualification of the court to said bill of exceptions seems to us to entirely negative the possibility of any harm having resulted to appellant therefrom, even had this inquiry been in the presence of the trial jury. We do not think trial courts are to be barred from asking questions which occur to them as necessary to clarify issues or matters dependent upon testimony oí some witness before the court.

There appear in the record no exceptions to the charge of the trial court. Three special charges were asked, two of which are directed toward the issue of an acquittal in the event appellant had testified before the grand jury relative to facts upon which the instant prosecution was based. Said charges were not pertinent to any issue in the case, the trial court having sustained the state’s demurrer to the motion in bar, which is discussed above. The remaining special charge was a request for a peremptory instruction of not guilty.

Finding no error in the record for which the case should be reversed, an affirmance is ordered. 
      <§=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     