Appellant files an able and extended motion for rehearing, supported by a brief of authorities and oral argument, showing research and care. He contends that we should have considered and held error the refusal of the court to continue the case. This action of the court was not made the subject of complaint in a bill of exceptions. Without such bill the matter is not properly before us. Hollis v. State, 9 Tex.Crim. App. 646; Trevino v. State, 38 Tex.Crim. Rep.; Gray v. State,100 Tex. Crim. 195, 272 S.W. 469; Payne v. State, 100 Tex. Crim. 241, 272 S.W. 788.
We regard the proposition as too well settled to call for further discussion at our hands, that objections to testimony are unavailing on appeal when it appears from the record that the same testimony went before the jury from some other source without objection. McLaughlin v. State, No. 11286, opinion February 15, 1928; Sifuentes et al. v. State, No. 11546, opinion March 7, 1928; Wagner v. State, 53 Tex.Crim. Rep.. The case last cited refers to many authorities, and the point made there has been uniformly followed.
As we gather from the record — and it seems to be conceded in the motion — the point made by appellant against the legality of the grand jury which indicted him grew out of the fact that the court issued a writ directing the sheriff to summon a grand jury, but did not issue said writ on the first day of the term. It is admitted that the court was newly created and its judge newly appointed, this appearing to be the first sitting of the *Page 172 court after its creation and after the appointment of said judge. Being in some doubt as to how the grand jury should be summoned, and after consultation with others, the trial judge appointed jury commissioners who drew the grand jury. Two or three days later and after more investigation, the judge became satisfied he had made a mistake, and he discharged said grand jury and directed the sheriff to summon the grand jury which returned this indictment. His action in the last instance was in accord with the provisions of Art. 348 Cow. C. P. The point of the complaint at his action is that he did not have them summoned the first day of the term. Appellant cites Russell v. State, 242 S.W. 240; King v. State, 234 S.W. 1107, and other earlier authorities. It may be here stated that all the authorities agree that one of the two methods of selecting grand juries, i. e., either that prescribed in Art. 333 Cow. C. P., or that laid down in Art. 348 Id., should be substantially followed; also that a showing of intentional, wilful or inexcusably neglectful disregard of that one of said two methods which is applicable in any given case — would be cause for reversal. This, however, should be stated in this connection, that there must be such showing or reversal will not be ordered on this ground. In King's case, supra, we said:
"With the limitations suggested, we think the sound rule is that the time of summoning the grand jurors or opening the list is directory, and that a deviation from it which cannot be harmful does not vitiate the organization of the grand jury nor its action in finding the indictment. Cyc. of Law and Proc., Vol. 20, p. 1309; Cyc. of Law and Proc., Vol. 22, p. 192."
In the Russell case, supra, we said:
"If sufficient reason could be shown for the failure to order the sheriff to summon a grand jury on the first day of the succeeding term, this might be remedied by making such order at a later day in the term."
No discussion is had in the Acuff case, 244 S.W. 1117, nor in the Saulter case, 92 Tex.Crim. Rep., said cases merely referring to the Russell case and adopting the views announced therein. We are unable to agree that there is the slightest showing in the case before us of an intentional disregard of the statute. That a newly created court followed the method prescribed by Art. 333, supra, under an honest belief that this was the correct method by which to obtain a grand jury, until his investigation convinces him that he is incorrect, at which time he adopts the correct method, evinces no intention to set aside the statute. This much is said in order that it may be plain *Page 173 that the indictment in this case is not deemed by us subject attack either by challenge to the array or motion to quash, hence it would be needless for us to discuss further the distinction between the right to make a motion to quash as against that of challenge to the array.
Being unable to agree with appellant in any of his contentions, the motion for rehearing is overruled.
Overruled.
ON SECOND MOTION FOR REHEARING.