The conviction is for the offense of murder. The punishment assessed is confinement in the State penitentiary for a term of seven years.
The testimony adduced upon the trial, briefly stated, shows that appellant was employed at a C. C. C. Camp but lived with his wife and a sixteen-year-old daughter in the town of Memphis, Texas, while his son was in the U.S. Army stationed at some place in Wyoming. John Gonzales, the deceased, was at the time employed as a waiter and cook at the camp, as were other Mexicans. Appellant and deceased became friends and at times the deceased and two other Mexicans would go to appellant's home with some musical instruments and furnish the family a little entertainment. At other times the deceased would cook some chili for appellant and his family, and at such times would eat his meals there. Sometime in the early part of the month of July, appellant's son came home for a visit of several days, at the conclusion of which appellant accompanied him back to Wyoming and was absent from home for about ten days. During this time the deceased would come to appellant's home and spend the night with appellant's wife. Thereafter, on Thursday, August 10th, when appellant was away from home, his wife and daughter packed their grips and went to Vernon, Texas. The deceased engaged a truck for them and assisted in conveying their grips to the depot. When appellant came home that night, he found his wife and daughter absent. On the following Saturday the deceased left camp and was *Page 449 gone until Tuesday. According to appellant's evidence, on the night of the killing, he and deceased went to that part of town where negroes lived and purchased some whisky as they had done on two or three preceding nights. They then went to an embankment near the railroad track, sat down and began to roll a cigarette. While they were sitting there, the deceased said to appellant:
"You think that I have been fooling with your wife and family while you were gone to Wyoming. I was down with your wife at Vernon last Saturday and had a good time."
Appellant replied: "It looks like from what I have heard and what you have said, that is true." The deceased then made a move with his hand like he was going for a knife and appellant struck him on the head with a hammer and left the deceased lying there. The next morning after the deceased was found, the officers began an investigation. When they first questioned appellant he denied any connection with the killing of Gonzales but later made a full and complete voluntary confession.
Appellant first complains of the action of the trial court in declining to sustain his motion to quash the indictment based on the ground that the grand jury which returned the indictment in this case was selected by a jury commission composed of five men appointed by the court at the previous February term. This motion was filed after the grand jury was impaneled.
Article 358, C. C. P., reads as follows:
"Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge."
Article 361, C. C. P., provides that a challenge to the array shall be made in writing for these causes only:
"1. That those summoned as grand jurors are not in fact those selected by the jury commissioners.
"2. In case of grand jurors summoned by order of the court, *Page 450 that the officer who summoned them had acted corruptly in summoning any one or more of them."
Consequently, if appellant desired to challenge the array, he should have done so in writing at the time the grand jury was being organized, unless he brought himself within the exception to the rule. See Powell v. State, 269 S.W. 443; Juarez v. State277 S.W. 1091, and authorities there cited.
Appellant's challenge to the grand juror I. L. Perkins was based on the ground that he was not a qualified voter under the law. Just why this man was not a qualified voter is not shown. If he had not paid his poll tax it would not disqualify him as a juror. See McAllister v. State, 93 S.W.2d 745; King v. State, 100 S.W. 387; Franks v. State, 139 Tex.Crim. R.. We therefore overrule his contention.
Bills of Exception Nos. 1, 2 and 3 related to the same subject matter and will be treated and disposed of together. By Bill of Exception No. 1 appellant complains because the trial court declined to permit him to prove by his wife that after she had gone to Vernon the deceased came to see her and that during his visit with her she had sexual intercourse with him. By Bill of Exception No. 2 appellant complains because the court declined to permit him to introduce in evidence a letter in affectionate terms which the deceased had written to the wife of appellant after his visit to Vernon and which she claimed was in the handwriting of the deceased. Bill of Exception No. 3 shows that after certain parties had testified to facts which indicated that the deceased was having illicit relations with the wife of appellant and of which he had been informed, he re-offered the letter in evidence, but the court sustained the State's objection thereto on the ground that the same was not pertinent and relevant in that it was not shown that appellant, prior to the homicide, had any knowledge of the letter or its contents. Such testimony would be strong and cogent corroboration of the oral testimony introduced by the appellant's wife and Mr. Childress, a personal friend of the appellant. We, therefore, hold that under the authority of McAnear v. State, 43 Tex.Crim. R., the learned trial judge erred in excluding said letter and the testimony of the wife of appellant as to her illicit relations with the deceased. See Eanes v. State, 10 Tex. Cr. App. 440; Powers v. State,88 Tex. Crim. 457.
For the error herein pointed out, the judgment of the trial court is reversed and the cause remanded. *Page 451
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 STATE'S MOTION FOR REHEARING.