Houillion v. State

Citations

• 3 Tex. Ct. App. 537

Syllabus

<p>1. Special Venire— Copy.—Before the defendant in a capital case can legally be forced to trial, he is entitled to one day’s service of a copy of the names of the persons summoned under the special venire facias ; and a denial of this right is error, if he except in proper time. But, if he fail to assert this right at the proper time, accepts a jury, and suffers the trial to proceed, taking the chances of an acquittal, he waives this right and cannot subsequently assert it.</p> <p>2. Same — Case Stated. — Out of a special venire of sixty the sheriff found and summoned but fifty-two, and, they being exhausted before the panel was filled, the remaining jurors were obtained from the jury list for the term. The accused made no objection at the time, and did not exhaust his challenges ; but, after verdict against him, he moved for a new trial, on the ground that, though served with a copy of the sixty names on the special venire, he had not been served with a copy of the names of the fifty-two persons summoned under it, and that, until the venire was called for the trial, he did not ascertain that eight of the persons named in the copy served on him had not been summoned. Held, that the proper time for the objection was when he thus ascertained the fact; and that, not having interposed it then, nor until after verdict, he waived his right to the copy, and his objection could constitute no cause for a new trial.</p> <p>3. Change oe Venue — Counter-aeeidavits.—It has been settled by repeated adjudications of the Supreme Court and of the Court of Appeals that counter-affidavits are admissible on the hearing of an application for a change of venue.</p> <p>4. Arrest oe Judgment. — That the minutes of the court below do not show that the indictment was presented in open court to the judge by the grand jury, a quorum being present, is not cause for arrest of judgment, though good, if sustained by the record, as an exception to the indictment before plea of not guilty. See an