The indictment in this case, which was found and presented in court by the grand jury at a regular term of the district court of Milam county, charges that the appellant, on the 21st of March, 1874, “ did then and there unlawfully and willfully permit and allow, in a certain house then and there being under the control of said Poley Reed,
The record does not disclose, by order of the court, bill of exceptions, or otherwise, except in the assignment of errors filed by appellant in the supreme court some months after the transcript, that any action was ever had by the court upon these special pleas; but, on the contrary, the presumption, from what appears in the record, is that they were waived, and that the only defense relied upon by defendant on the trial was his plea of not guilty.
In Shaw v. The State, decided by the supreme court at Austin on the 27th day of April, 1875, where a similar question was involved, Justice Moore says : “If there was any irregularity of action of the grand jury by whom the indictment was presented, or if it was found by an illegal body, not authorized to act in the capacity of a grand jury, it does not appear on the face of the indictment, by bill of exceptions, or otherwise, in the record brought to this court, except as alleged in appellant’s motion to quash. There was, therefore, unquestionably no error in the refusal of the court to quash the indictment on this ground.”
The rule as here laid down, if there were no other, would be sufficient to dispose of the question raised, relative to the grand jury, by the appellant’s assignment of errors. But we think that a reference to the positive provisions of our statute, and the decisions thereon, will show that such a special plea is not permissible under our practice, either in abatement of the indictment or in arrest of the judgment.
The plea in abatement in this case does not come within the purview of either of the only special pleas which can be heard for the defendant, as set out in Paschal’s Digest, Article 2951. If it should, therefore, rather be treated as a motion to set aside the indictment than as a special plea, then our law provides “ that such a motion shall be based upon one or more of the following causes, and no other: 1st. That it appears by the records of the court that the indictment was not found by at least twelve grand jurors. * * * 2d. That some person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or were voting upon the same,” etc. Art. 2950, Pasc. Dig.; The State v. Oxford, 30 Texas, 428 ; and, directly in point, see Newman v. The State, 43 Texas, 526.
We cannot appreciate the force of the 2d special plea in abatement, wherein the position assumed is that the laws above cited are in violation of sections 8, 16, and 23 of Article
It will be seen that the right is given to “any person, before the grand jury have been impaneled, to challenge the array of jurors, or any person presented as a juror.” Art. 2830, Pase. Dig. And the grounds upon which they are authorized to exercise this right are fully set out in Articles 2831 and 2832. One of the grounds assigned, for instance, as cause of challenge to the particular juror (Art. 2832, subdiv. 5), is that “he is the prosecutor against the person making the challenge.” Yet, notwithstanding this important right given the citizen, it is rarely, if ever, exercised, for want of knowledge of the right, or want of an opportunity offered him by the judge to avail himself of it; and in a large number of instances the party who could successfully make this challenge against his prosecutor, and, by getting rid of him, perhaps thus avoid an unjust indictment, is confined in jail and never permitted to see the men who compose the grand jury, to abide whose action he has-been arrested and confined, and is never apprised of the fact that his prosecutor is one of the number.
Again, to illustrate further, the law does not permit a party who is himself either under accusation, or who is related by consanguinity or affinity to some person who has been held to bail, or who is in confinement upon a criminal
It is believed that, if this procedure is had, none other than a proper grand jury is likely to be impaneled; that the rights of every person, and especially defendants, will be fully secured and protected, as far as they can be secured and protected, in the selection and organization of that body; and that hereafter there will be no similar ground of complaint upon this score.
As to appellant’s special plea in abatement to the petit jury, we find that the challenge to the array and principal causes for challenge to the particular petit juror, before the adoption of the Constitution of 1869, were those enumerated in Articles 3034 and 3040. This latter Article (3040) is supposed to be, and has been declared to be, in conflict with the Constitution of 1869, and, therefore, no longer of any binding force and authority. In Maloy v. The State the court say: The law prescribing a property qualification
We do not think either of the special pleas in this case-well taken, and, believing that the charge of the court presented the law applicable to the case, and that there was evidence sufficient to warrant the finding of the jury, there being no material error in the proceedings in the lower court, the judgment is affirmed.
Affirmed.