Conviction of assault with intent to murder.
Motion was made to quash the indictment because the grand jury *Page 598 presenting it was an illegal body, by reason of the fact that several of its members had not paid their poll taxes before the 1st of January, 1903. In regard to the date of the payment of the poll tax, the amendment to the Constitution fixes the time as the 1st of February, and not the 1st of January. This indictment was presented on January 15th. There was still sixteen days of January in which the grand jurors could pay their poll tax, conceding it was necessary under existing legal conditions. This amendment to the Constitution was adopted at the election in November last, and has no retroactive effect. So it could not operate to prohibit citizens from voting at elections occurring prior to February 1, 1903. But in no event was the motion to quash well taken. The disqualification of grand jurors can not be raised on motion to quash. Doss v. State, 28 Texas Crim. App., 506; Lienburger v. State (Texas Crim. App.), 21 S.W. Rep., 603; Reed v. State, 1 Texas Crim. App., 1; Hudson v. State, 40 Tex. 12 [40 Tex. 12]. So, from any standpoint, it would not constitute a cause for challenge or ground of motion to quash.
It is also contended that some of the jurors who tried him were disqualified because they had not paid their poll tax, as required by the recently adopted constitutional amendment. This question, however, is raised on motion for new trial, and comes too late. Sutton v. State, 31 Tex.Crim. Rep.; Leeper v. State, 29 Texas Crim. App., 63; Lane v. State, 29 Texas Crim. App., 310; Loggins v. State, 12 Texas Crim. App., 65. The amendment as to voters does not apply to petit jurors, for reasons above indicated, under existing legal status.
The refusal of the court to grant the continuance will not be revised, because proper bill of exceptions was not reserved.
In the motion for new trial it is urged that the court should have charged on aggravated assault and battery. It is a very serious and doubtful question, under the facts, if appellant did shoot at Talley, whether he intended to kill. The firing at Talley is denied by appellant. Appellant fired the shot at close range, and there was but one shot fired at Talley. There was nothing to prevent appellant from shooting him. There was no interference of any sort. It was a serious question, bearing directly on the intent of appellant, and tended strongly to show that the specific intent to kill was wanting.
We are of opinion that a charge on aggravated assault should have been given, and, because it was not, the judgment is reversed, and the cause remanded.
Reversed and remanded. *Page 599