260 S.W. 598
BRYANT 
v. 
STATE.
(No. 8303.)
Court of Criminal Appeals of Texas.
February 20, 1924.
Rehearing Denied March 26, 1924.
Page 599
        Appeal from District Court, Freestone County; J. R. Bell, Judge.
        Mose Bryant was convicted of manufacturing intoxicating liquor, and appeals. Affirmed.
        Williford & Geppert and T. H. Bonner, all of Fairfield, and Boyd & Smith, of Teague, for appellant.
        Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.
        LATTIMORE, J.
        Appellant was convicted in the district court of Freestone county of manufacturing intoxicating liquor, 
and his punishment fixed at one year in the penitentiary.
        There are many bills of exception in the record which present objections to the same proceedings 
apparently from what appears to the appellant to be different angles. These matters will be treated by us 
in conjunction.
        A searching party, including officers, went to appellant's premises on the night in question and 
watched same for some time. They finally saw a car drive up to appellant's house and remain for a period 
of time estimated at something less than half an hour. Various parties were seen in and around the car 
and going from it to where a still was subsequently discovered, and it was in testimony that one of the 
parties was identified by his voice as appellant. When the car finally left the house it was stopped by the 
searching party about 75 or 100 yards away, and in it were two negroes and a demijohn containing 
several gallons of whisky. Upon going to the house a still was found in appellant's smokehouse situated 
some 3 feet from the residence, said still being in operation. Appellant and his wife were not at the house, 
but appellant was shortly thereafter arrested. The car belonged to appellant. Both the negroes who were 
in it appear to have been convicted for transporting intoxicating liquor, but the sentence of each was 
suspended. Both of them were used as witnesses against appellant.
        By a bill of exceptions complaint is made of the court's refusal to sustain the motion to quash the 
indictment based upon the fact that one Hood was one of the jury commissioners that drew the grand jury 
which returned the indictment, and that said Hood was not a qualified juror nor citizen of the county, nor 
a freeholder therein. The court heard testimony upon the issues raised by the motion to quash, which 
testimony appears in the record, and from which we conclude no error was committed in holding Mr. Hood 
to be a qualified juror and a citizen of the county. On the proposition that not being a freeholder would 
suffice to cause a quashing of the indictment, we conclude that
Page 600
Whittle v. State, 43 Tex. Cr. R. 468, 66 S. W. 771, settles the matter adversely to appellant's contention. 
We do not think the fact that another of the jury commissioners had served in a similar capacity in 
October, 1922, would render him incompetent to be a jury commissioner in April, 1923. There is nothing 
in the statute which seems to forbid that one should serve as jury commissioner twice within a 12-month 
period, and in our opinion the service in October of one calender year would not forbid another service 
during the early part of the succeeding calendar year. The statute (article 5123, Vernon's Ann. Civ. St. 
1914) intends to prevent the acting twice by the same commissioner during a calendar year. See Words 
and Phrases under "Year." Article 5504 of said statutes expressly says the word "year" shall be taken to 
mean calendar year. The contention that the list of grand jurors was not signed by the commissioners, nor 
returned and filed with the clerk, and therefore the grand jury should be quashed, does not seem to us to 
present merit, in view of the fact that it was in testimony beyond dispute that the list of grand jurors so 
drawn and returned was in fact the one from which the grand jury that found the indictment in the instant 
case was drawn.
        From another bill of exceptions and the qualification appended thereto by the learned trial judge we 
learn that appellant made a motion to quash the jury panel for the fourth week, which was sustained, 
whereupon the court directed the sheriff to summon 36 men to serve as a jury for the week. The objection 
to the service of said panel seems to be presented in said bill. Our statutes direct that, if the jurors 
regularly drawn be disqualified or discharged, or fail to appear from any cause, and there be no jury, the 
trial court shall proceed as was done by the judge in this particular instance. We think appellant cannot 
complain.
        A large number of bills complain of that part of the charge which told the jury that they should 
convict if they believe beyond a reasonable doubt that the appellant "directly or indirectly" manufactured 
the liquor in question; also of that part of the charge wherein was submitted the proposition that, if 
appellant, either alone or in connection with any other person or persons, made said liquor, he should be 
found guilty. We see no good purpose that would be served by setting out at length the particular 
objections that were urged in the various bills of exception to the parts of the charge referred to. In our 
opinion the submission of the case to the jury in the form mentioned was justified by the facts and by the 
law. It is provided in what is known as the Dean Law that any person who either directly or indirectly 
manufactures, etc., intoxicating liquor, shall be deemed guilty, and there can be no question raised of the 
correctness, when supported by proper testimony, of the submission to the jury of the law of principals. 
We have stated enough of the evidence above to show that the question might be in the case as to 
whether appellant or some other member of his family with his knowledge manufactured the liquor. This 
would seem to make proper the submission to the jury of the question of whether he made it directly or 
indirectly, and also of whether he acted either alone or in connection with some other person in the 
making of the liquor. We do not see how the submission of either proposition places an unnecessary 
burden upon the appellant, nor how it can be said that a conviction could be secured upon less evidence 
than if the charge was different.
        Objection to the testifying of the two negroes found in the car by the searching party upon the 
ground that they had been convicted of felonies would not seem tenable in view of the fact that the 
sentence of each had been suspended.
        We have carefully examined the charge of the court on circumstantial evidence as well as the special 
charge asked upon that issue, and do not believe the charge open to the exception directed at it, nor that 
there is such difference between its verbiage and that of the special charge as to require the giving of the 
latter.
        In our opinion the appellant has received a fair trial, and no error was committed that could in any 
way prejudice his case, and the judgment wil be affirmed.
On Motion for Rehearing.
        HAWKINS, J.
        In his motion for rehearing appellant renews his attack upon the indictment, averring that the same 
should be quashed upon the ground that it was returned by a grand jury which had been selected by a 
jury commission one of the members of which commission was not a freeholder in the county, and 
asserting that Whittle v. State, 43 Tex. Cr. R. 468, 66 S. W. 771, is not authority for the holding in the 
original opinion. It is asserted that in the case referred to the question before the court arose upon the 
refusal of the trial judge to quash the array of jurors, but that such is not the question in the instant case. 
The only distinction we can see is that in the instant case the effect of the motion to quash the indictment 
was an attack upon the array of grand jurors which returned the indictment, whereas in Whittle's Case the 
effect of it was to attack the array of petit jurors. That appellant regarded the attack in the light of a 
challenge to the array of the grand jury is apparent from the fourth ground of his motion to quash, which 
reads as follows:
        "Defendant further shows to the court that he had not heretofore at any time waived any right to 
appear before this court and file
Page 601
this challenge to the array of the grand jury, neither has he at any time heretofore waived his right to 
appear and move the court to set aside and hold for naught the action of the grand jury in returning the 
bill of indictment against him in this cause, for the reason that the defendant was not under bond at the 
time of the impaneling of said grand jury to answer any charge said grand jury might present against him, 
and had no knowledge whatsoever of the action of the grand jury in this cause until he was arrested."
        Assuming for the purpose of this discussion that appellant presented his motion at the first possible 
moment it could have been called to the attention of the court, yet it still remains true that his grounds, if 
any, for quashing the indictment are the same that could have been urged if he had had an opportunity to 
present it as a challenge to the array of the grand jury.
        Article 384 of our Code of Criminal Procedure provides as follows:
        "The district judge shall, at each term of the district court, appoint three persons to perform the 
duties of jury commissioners, who shall possess the following qualifications:
        "1. They shall be intelligent citizens of the county, and able to read and write.
        "2. They shall be freeholders in the county, and qualified jurors in the county.
        "3. They shall be residents of different portions of the county.
        "4. They shall have no suit in the district court of such county, which requires the intervention of a 
jury."
        Article 409 of our Code of Criminal Procedure provides as follows:
        "Any person, before the grand jury has 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."
        Now, to revert to the Whittle Case, supra, to determine whether it is in point upon the question 
before us: The defendant in that case moved to quash the array of petit jurors on the ground that one of 
the commissioners who drew the jury was interested in three civil suits which required the intervention of 
a jury, and, further, that said jury commissioners were not residents of different portions of the county. 
This court, speaking through Judge Henderson, said:
        "In this case the objection was made to the jury on their impanelment, so that we are squarely 
confronted with the question whether or not the refusal of the court to entertain the motion at the earliest 
moment when it could be made was error. If we so hold, unless each of the commissioners shall possess 
all of the qualifications prescribed, then in every case in which a jury is tendered, drawn by said 
commissioners, the jury list should be set aside, because the language in reference to each clause 
prescribing the qualifications of commissioners is equally mandatory; and because two of the 
commissioners should be residents of the same portion of the county would equally disqualify the jury 
drawn, as if it should turn out that they should not be qualified jurors and freeholders of the county. In 
order to impose this test, it is said that the rule that injury must be shown before a party can avail himself 
of the objections to the commissioners would be impossible; that the law having prescribed the machinery 
for the selection of the jury, he has suffered a legal injury, though it may not be possible to show any 
actual injury. It occurs to us if, because the machinery provided for the selection of jury commissioners 
has not been strictly followed, a jury drawn by them should be set aside on the ground that legal injury 
will be presumed, would be productive of such confusion as to produce a public hardship, which ought not 
to be brought about except upon the strongest reasons. Evidently the lawmakers had this in view when 
they provided for the character of challenge to the array. Article 660 [now 679], Code of Criminal 
Procedure, provides for a challenge to the array on the part of the state; and article 661 [now 680] 
provides for a challenge on the part of defendant, to the effect that the officer summoning the jury has 
acted corruptly, and has willfully summoned persons upon the jury known to be prejudiced against 
defendant, with the view to cause him to be convicted. Article 662 [now 681] provides that the two 
preceding articles do not apply when the jurors summoned are those who have been selected by jury 
commissioners. In such case no challenge to the array is allowed. Now, the challenge to the jurors in this 
case, though presented as a motion to quash, was simply a challenge to the array [italics ours]; and if 
article 662 [now 681] means anything, it means what it says: that is, a challenge to the array cannot be 
made to a jury selected by jury commissioners. See authorities cited in White's Ann. Code Crim. Proc. 
under art. 662. So that this article of the procedure, in connection with the articles prescribing the 
qualifications of the jury commissioners, must be construed in pari materia; in other words, the article of 
our Code places a limitation on challenges to the array, and prescribes that it shall not be done where the 
jury have been selected by jury commissioners. And the former articles further suggest that the challenge 
to the array can only be made when prejudice is shown. Even if we apply this test, what prejudice is 
shown where one of the commissioners is interested in some civil suit not connected at all with the 
prosecution in this case. We are not now discussing a case where the jury commissioners are shown to 
have acted corruptly in the particular case in drawing a list of jurors to secure the conviction of defendant. 
It has been held that other causes may exist for the quashal of the array outside of the statute; but in all 
such cases violation of some constitutional guaranty or some injury must be shown. Carter v. State, 39 
Texas Crim. Rep. 352; Williams v. State, 20 Texas Crim. App. 359. We hold that the court did not err in 
refusing to entertain the motion."
        We have quoted at length from Whittle's Case, supra, not only because we believe it to be a direct 
precedent upon the point now under discussion, but because it appears to be
Page 602
sound both upon principle and reason. It will appear from article 409 and 412, Code of Criminal 
Procedure, that the framers of our law wisely concluded that there should be a limitation upon the time 
when, and the ground upon which, an attack could be made upon the qualification and legality of a grand 
jury. Article 412 provides that:
        "A challenge to the array shall be made in writing, and for these causes only:
        "1. That the persons summoned as grand jurors are not, in fact, the persons selected by the jury 
commissioners.
        "2. In case of grand jurors summoned by order of the court that the officer who summoned them 
had acted corruptly in summoning any one or more of them."
        Whatever form the attack upon the indictment in the present case takes it is necessarily an attack 
upon the legality of the grand jury as a whole, and therefore must necessarily be construed as an attack 
upon the array upon a ground not recognized by the law. For the reasons heretofore stated we conclude 
the learned trial judge not to have been in error in overruling appellant's motion to quash the indictment.
        The other grounds of complaint set up in the motion for rehearing were all considered, if not fully 
discussed, and we fail to discover anything which would cause us to change our views in the former 
disposition of the case.
        The motion is therefore overruled.