The offense is possession of intoxicating liquor for the purpose of sale, the punishment confinement in the penitentiary for one year.
Appellant made a motion to quash the indictment, claiming that the grand jury which returned said indictment was illegal. The term of court at which appellant was indicted initiated a *Page 170 new District Court for Gray County, the Legislature having theretofore created the Eighty-fourth Judicial District. Said term being the first term authorized by the statute after the creation of the district, the presiding judge had had no opportunity of having the grand jury selected by a jury commission at a previous term. On the first day of the term, being uncertain as to the procedure, a jury commission was empaneled, who selected the grand jury for the term. The grand jury thus selected was empaneled on March 8, 1927, the second day of the term. On March 10th, having reached the conclusion that the proper procedure would have been to instruct the sheriff to select the grand jury, said grand jury was finally discharged, and the sheriff was instructed to summon grand jurors. Exercising the discretion vested in him, the sheriff selected the same persons who had constituted the grand jury originally empaneled. The grand jury thus selected were, on March 10th, duly empaneled. On March 11th said grand jury returned an indictment charging the offense to have been committed by appellant on or about February 18, 1927. Appellant was arrested February 17, 1927.
No arbitrary disregard of the statute relating to the subject of the selection of grand jurors is disclosed by the record. Appellant had been arrested when the grand jury was empaneled, and was in a position to challenge the array. Not conceding that the grand jury had been illegally selected, suffice it to say, that under the facts reflected by the record, appellant's remedy was a challenge to the array at the time the court empaneled the grand jury. Powell v. State, 269 S.W. 443.
Operating under a search warrant, officers searched appellant's hotel and found therein a quantity of whiskey, which consisted of one quart, seventeen full pints, three full half pints and one half pint about one-fourth full. There was also discovered a tub of empty bottles which had contained bottled in bond whiskey. The whiskey was hidden on a sub-floor which was built under the sills. Drunk men had been arrested around the hotel shortly prior to the search. On the occasion of the search officers arrested a drunken man who was leaving the hotel. This man had a pint of whiskey, which was in a bottle similar to the bottles thereafter discovered in the hotel. The whiskey was of the same color and was apparently of the same grade as that thereafter discovered in appellant's possession.
The affidavit upon which the search warrant was based was made upon information and belief and the grounds of belief *Page 171 were not therein exhibited. Appellant lodged appropriate objections against the introduction of the testimony of the officers touching the result of the search. The questions involved may be disposed of by stating that appellant testified that the whiskey belonged to him and detailed the manner in which its hiding place had been constructed. Having testified to the same facts as stated by the officers relative to the quantity of whiskey he possessed, appellant cannot now claim to have been injured by the testimony of the officers, even if such testimony was improperly admitted. Gonzales v. State,299 S.W. 901.
Finding no error, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.