#### DENNY v. STATE.

No. 25768.

Court of Criminal Appeals of Texas.

April 2, 1952.

On Motion to Suspend Further Proceedings April 30, 1952.

L. F. Sanders, Canton, for appellant.

Joe Tunnell, Criminal Dist. Atty., Canton, George P. Blackburn, State’s Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The appeal is from a conviction for murder with a life sentence in the penitentiary.

The statement of facts in the case sufficiently supports the jury’s verdict. The only defense offered was insanity. This issue was thoroughly gone into and evidence produced from a number of witnesses, relatives and neighbors, who knew appellant and described the condition upon which they based a conclusion as to his mental incapacity. Several physicians examined him and testified in behalf of appellant. It is not necessary to discuss their evidence in full. The issue on the subject was clearly drawn and the jury found in- favor of the state’s contention. In doing so their verdict has eliminated every complaint in the record which may be based.upon the proposition that he was mentally incapacitated to -look after his defense.

The statement of facts before us is in question and answer form. This is so voluminous as to preclude the possibility that' this court could read the same and give consideration to every objection and exception taken in the course of the trial. Such conditions must have been anticipated by the legislature which provided, in authorizing the statement of facts to be in question and answer form, that in order to preserve the exceptions ah index must he made as a part of the statement of facts oalling attention to each exception on which the appellant expects to rely. No such index is found in the statement of facts in this case and, as a consequence, the bills of exception taken in that manner are not before us for consideration.

We will, nevertheless,-discuss some of the questions which are probably raised by the motion for new trial.

The offense of murder is alleged to have been committed on June 12, 1951. Appellant was immediately placed in jail and has been there continuously to the date of the appeal. On June 19th, seven days after the homicide, the grand jury was convened and it appears that one of. the- number, who acted as foreman, had not paid his poll tax and was subject to the payment of poll tax as a qualification for voting in Van Zandt County. It is agreed that more than a thousand men are qualified voters and qualified to serve on the grand jury in Van Zandt County.

It is shown that appellant had no visitors in jail and he had had no information that the grand jury was being impaneled. He did not employ an attorney until June 26th, seven days after the return of the indictment. Based on these facts a motion was filed, when the -case was called for trial, to quash the indictment alleging the disqualification of the foreman of the grand jury and his presence while the indictment was being discussed and voted upon.

*154Under Article 339, Vernon’s Ann. Code of Criminal Procedure, the foreman was not a qualified juror and should have been excused had timely abjection been made. The question then presents itself, did appellant waive 'his right to challenge the grand juror? That 'he had no attorney until June 26th was a matter of his own choosing for which neither the court nor the state was responsible, tie cannot be heard to say that he did not know his legal rights. It is presented in argument under these facts that he had no way of knowing that the grand jury was going to be impaneled. If he had inquired of somebody who had the responsibility of giving the information and had been misled a different question may have arisen. There is no showing in this record that he made any effort to find out what was happening in regard to his case.

Article 358, Vernon’s Ann. Code of Criminal Procedure, 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.”

In Brown v. State, 32 Tex.Cr.R. 119, 22 S.W. 596, 601, it was said:

> “Defendant’s motion to set aside and quash the indictment because he was not allowed an opportunity for challenging the array of jurors constituting the grand jury was not well taken. He made no request to be brought from jail for that purpose. This was necessary.”

Again, in Barkman v. State, 41 Tex.Cr.R. 105, 52 S.W. 73, this court said:

> “The law provides that the accused may be present when the grand jury is impaneled, to the end that he may challenge the array or any member of the panel. But where he is confined in jail, and desires to be present, 'he or his counsel must make that wish known to the district judge. This was not done, and for that reason there is no merit in this contention.”

This seems to have been the holding continuously, as stated in Walker v. State, 98 Tex.Cr.R. 663, 267 S.W. 988, at page 990:

> “Appellant fails to 'bring himself within any exception which would permit an attack upon the action of the grand jury through a motion to quash the indictment. His effort to excuse himself from failing to present a challenge to the array of grand jurors does not meet the requirement that if in jail an accused must make request that he be brought into court for that purpose.”

The legislature took into consideration the fact that the accused would be confined in jail at times and made provision for giving him the privilege of being brought into the court room to make a challenge for cause against a grand juror, but it does not impose upon the court or the prosecuting attorney any obligation to carry him the information and advise 'him of his rights. It is a commendable practice of a great many district judges to inform such unfortunate persons of their rights but the legislature having failed to impose any such duty on the trial judge, the clerk, the sheriff, or the prosecuting attorney, we are without authority to do so. The complaint cannot be sustained.

Another question much insisted upon complains that the evidence taken on the examining trial was sealed up and placed with the district clerk and that appellant and his attorney were denied the privilege of seeing this evidence until the trial had started.

It would appear that a record of this kind is a public record because it has been taken at a trial that is public. In that view we see no logic in refusing permission to appellant, or anyone interested in the case, the privilege of seeing the record. Our logic, however, is confronted with a statutory provision which seems to 'have been complied with to the letter in this case. We refer to Articles 296 and 297, Vernon’s Ann. C.C.P. See also 12 Tex.Jur. p. 606 and 607.

The third ground of complaint upon which we are asked to reverse the case is the failure of t'he court to grant a continuance to a subsequent term of court. We *155have examined the record carefully and it appears that the court was quite indulgent. The witnesses most important as described by the motion for continuance were 'brought into court and testified. The position is then taken that, under the circumstances, they were not able to give the forceful evidence which they would have given 'had they been physically able to attend court.

The lady witnesses, a sister, a sister-in-law and an aunt of appellant, were examined and in the opinion of the writer were unusually well prepared to testify. They were of extraordinary intelligence and withstood grueling examinations without any break or default in the positions taken. Their testimony in the case cannot be relied upon to substantiate the contention presented in the motion.

A motion was made to quash the venire of 100 jurors on the ground that the jurors had not been regularly summoned. It is shown that the District Attorney volunteered his services to aid the deputy sheriff in addressing notices to the jurors on the list furnished by the district clerk. The district attorney had a list of his own and used the same to address the notices. Another deputy sheriff assisted him in checking the addresses with the list. This was finished late in the afternoon and, finding no member of the sheriff’s force in the office, the district attorney deposited the notices in the mail. Each notice was given in the name of the sheriff.

Admittedly this procedure is not regular and is the most difficult question presented in this appeal, but we fail to find any 'harm done to appellant in that it is not shown that any of the veniremen failed to appear and attend court. It is not shown that appellant exhausted 'his peremptory challenges and that he was, thereby, forced to take an objectionable juror. In this state of the record, this court has discussed the question now before us and held adversely to appellant’s contention in Matthews v. State, Tex.Cr.App., 239 S.W.2d 817. In that opinion many authorities were cited.

The transcript in this case is unnecessarily long. It contains subpoenas, applications for subpoenas, and many other instruments not required or appropriate to be placed in a transcript. We have examined this mass of records in a sincere effort to understand all of it, and believe that we have succeeded. We find no reversible error and the judgment of the trial court is affirmed.

GRAVES, Presiding Judge.

After the affirmance of this cause by this court and while the case was pending on motion for rehearing, upon a trial in the court in which he was convicted, appellant was adjudged to be insane, and was committed to a state hospital.

The motion to suspend further proceedings is granted and the clerk of this court is directed to retire this case from the docket until it shall 'be properly shown to this court that appellant has been restored to sanity. See Nugent v. State, Tex.Cr. App. 230 S.W.2d 223, and authorities there cited.