Appellant interposed a plea in abatement of the indictment upon the alleged disqualification and incompetency of one of the grand jurors who presented the bill, the ground of disqualification and incompetency of said juror being that he had, before sitting on said jury, been convicted of a felony (Code Crim. Proc., art. 358, sub-div. 5), and had not been restored to competency by pardon or otherwise.
Our statute provides that “ any person, before the grand jury have been impaneled, may challenge the array of jurors, or any person presented as a grand juror, and in no other way shall objections to the qualifications and legality of the grand jury be heard.” (Code Crim. Proc., art. 377.) Just after the adoption of our Code of Criminal Procedure, our Supreme Court, in the case of The State v. Vahl, 20 Texas, 779, held, in effect, that the provision above quoted abrogated the common law right, or the right theretofore existing, to attack the indictment on objection to the competency of the grand jurors by plea in abatement, and that the objections to such jurors could only be taken by challenge at the time of the organization of that body. In Hudson v. The State, 40 Texas, 12, it was held that objection that the grand jury was not legally constituted could not be availed of by motion in arrest of judgment, and it was further said in that case that “ a challenge is not simply one mode of reaching the objection, but the statute declares in express terms that the objection shall be made in no other way.”
In Owens v. The State, 25 Texas Ct. App., 552, where a similar question to the one now before us was raised, we said: “ A plea in abatement to an indictment is not, technically speaking, provided for in our Code of Criminal Procedure. There are two grounds, and only two, mentioned in our Code as sufficient on motion to set aside an indictment. (Code Crim. Proc., art. 523.) Independently of these two grounds, jeopardy and want of jurisdiction are the only other grounds known by which to avoid and vacate an indictment after its presentment.”
Appellant’s counsel contends and insists that the question he raises is necessarily a jurisdictional one, because, if it should appear on proofs of his plea that the juror was incompetent, then there were in fact only eleven grand jurors organized legally, and that, the indictment being found by a less number of grand jurymen than are required by the Constitution and laws, such an indictment was a nullity and would not support jurisdiction for trial and conviction. (Lott v. The State, 18 *507Texas Ct. App., 627; Smith v. The State, 19 Texas Ct. App., 95.) Suppose we concede the correctness of this position, then as-to this particular case, did the court err in overruling the plea in abatement if treated as one to the jurisdiction? We think not. The defendant’s bill of exceptions, taken to the ruling of the court, sets out all the evidence adduced in support of the plea, but does not set forth the indictment upon which the grand juror had been tried, and there is no positive proof that he was tried and convicted of a felony, and such fact, if a. fact, is not made to appear clearly, but, if shown at all, is-only made to appear but very dimly and imperfectly. Neither the verdict nor judgment of conviction show affirmatively that the grand juror had been tried and convicted of a felony. The-plea was not supported by the evidence, and it was not error to-overrule it, even if such a plea could have been interposed to-the indictment.
Instead of a plea in abatement, it occurs to us that defendant might, perhaps properly, under the facts contended for, have moved to set aside the indictment in this case for the-reason that a “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.” This ground, for setting aside an indictment is specially provided for by subdivision 2 of article 523 of the Code of Criminal Procedure, and under it defendant might have presented the question raised, because, if the proposed grand juror was a convicted felon, he would be a person unauthorized and incompetent to-be in the grand jury room whilst they were deliberating and voting upon the finding of bills.
One Mitch Adams had been indicted by separate indictment for the theft of the same animal charged to have been stolen by defendant in this case. He had been tried and convicted of willfully and fraudulently driving said horse from its accustomed range without the consent of the owner and with intent to defraud the owner, and had been fined in the sum of seven, hundred and fifty dollars. Defendant offered to introduce-Adams as a witness in his behalf, and the State objected to bis-competency because, first, he was a convicted felon, and, second, because he had not paid the fine assessed against Him, The objections were sustained, and the witness was not permitted to testify.
It has been held by this court that willfully driving stock *508.from its accustomed range, with, intent to defraud, etc., whether the punishment be imprisonment in the penitentiary or the alternative one of fine, was a felony. (Penal Code, arts. 54, 794; Campbell v. The State, 22 Texas Ct. App., 262; Guest v. The State, 24 Texas Ct. App., 530; Taylor v. The State, 25 Texas Ct. App., 96.) It is true, however, that ordinarily a party, under our present statutes, can not be held to have been finally •convicted of a felony until sentence has been passed upon him. (Code Crim. Proc., arts. 793, 794; Arcia v. The State, ante, 193.) In this case, however, it was not necessary, perhaps, to pass .sentence upon the defendant, inasmuch as his punishment was a pecuniary fine only. (Code Crim. Proc., art. 702.) Under such circumstances the court did not err in holding him incompetent by virtue of the judgment alone, it being for á felony, though no sentence had been pronounced. Adams had not appealed from said judgment, and our code declares that “an accused person is termed a convict after final condemnation by the highest court of resort which by law has jurisdiction of his •case, and to which he may have thought proper to appeal.” (Penal Code, art. 27.) The judgment rendered against him contains all the requisites of a final statutory judgment. (Code Crim. Proc., art. 791.) But the witness Adams was a principal •offender in the same crime with defendant, though indicted •separately, and unless he had been acquitted was not a competent witness for his confederate or coprincipal. (Code Crim. Proc., art. 731.) On this ground the court did not err in ex•cluding him as a witness.
We are of opinion that fundamental error was committed by the court in its charge to the jury, and that for this reason, if for no other, the judgment should be reversed. In the indict:ment Robertson, Ash and Clifton were all connected by allegation with, the ownership and possession of the animal charged to have been stolen. It alleged properly that the animal was taken “without the consent of the said Clifton or the said Ash •or the said Robertson, or either of them.” This was altogether proper and necessary in order to negative the consent of each .and all the parties deprived of the ownership and possession. But the court, in the charge to the jury, instructed them that if they believed beyond a reasonable doubt, etc., “that said taking (if any) was without the consent of the said Robertson, or Ash or Clifton or either of them * * * * then juu will find him guilty,” etc. This is manifestly erroneous. *509It was tantamount to charging them that they might convict if any one of the parties had not consented, though defendant might have had the consent of the other two. In other words, that the general and actual owner of the property .might have-given consent to defendant’s taking, and yet he would nevertheless be guilty of the theft if either of the special owners-had not given their consent.
Opinion delivered November 28, 1888.For this error in the charge of the court the judgment must be reversed and the cause remanded.
Reversed and remanded.
Hurt, Judge, thinks the witness Adams was incompetent because indicted and convicted for the same offense, but does not-believe this conviction was for a felony, and that thereby he-was rendered incompetent. He concurs in the opinion that the; judgment should be reversed for the reason stated.