Williams v. State , 24 Tex. Ct. App. 32 ( 1887 )

White, Presiding Judge.

This is a" companion case to that of I. IT. Williams v. The State, just decided, grew out of the same transaction, and was a similar prosecution for jail breaking.

I. No bill of exception having been reserved to the court’s overruling defendant’s application for continuance, he is not entitled to a revision of the ruling in this court. (Scott v. The State, 23 Texas Ct. Ap., 522.)

II. It appears from the record that at the last previous term of the court the jury commissioners had only drawn and selected jurors for three weeks of the next term. At the time they acted, the length of the term of the district court for Comanche county, fixed by law, was three weeks. After adjournment of that term, the Legislature had lengthened the term to four weeks. When court convened the jury commissioners of the then present term were required to draw and select jurors for the fourth week of said term. The jury in this case was composed of the jurymen thus selected and drawn, and defendant challenged the array because they had been selected by the jury commissioners of the present and not of the previous term. This challenge was rightly overruled by the court. The mode and manner of selecting jurors for said fourth week was in conformity with law. (Elkins v. The State, 1 Texas Ct. App., 539; Shackelford v. The State, 2 Texas Ct. App., 385; O’Bryan v. The State, 12 Texas Ct. App., 118.) No challenge to the array of jurors selected by jury commissioners can be entertained. (Id.)

We are of opinion, independently of the cases cited, that authority for the court’s action in the premises might well be predicated upon the spirit and intent of the provisions of article 3022 of the Revised Statutes. These provisions are not in conflict with article 658, Code of Criminal Procedure, but leave it discretionary with the court, “when it may deem necessary,” to appoint jury commissioners where they have not been appointed in time to make selection of jurymen; and no good reason is seen why the court can not, as was done, utilise for that purpose the services of the commissioners already appointed to select for the next term' of court.

III. As to the complaints made of the charge of the court, suffice it to say, the questions raised and circumstances connected with them, are identically the same as in the I. IT. Williams case, and need no further discussion or amplification. ITo reversible error as to the charge is presented.

Opinion delivered October 19, 1887.

IV. The language of the district attorney, in his closing •speech, which is made the subject of a bill of exception, was provoked, it appears, by the defendant’s counsel, and was simply an answer to remarks made by them, demanding and forcing from him a reply. Under such circumstances he can not be .heard to complain. (Pierson v. The State, 18 Texas Ct. App., 525; House v. The State, 19 Texas Ct. App., 227.)

As in the Ike Williams case, so in this, we have found no reversible error in the judgment of conviction, and it is therefore affirmed.

Affirmed.