De Olles v. State

20 Tex. Ct. App. 145, 1886 Tex. Crim. App. LEXIS 23

Opinion

Willson, Judge.

The indictment shows upon its face that it was presented in the district court of La Salle county, State of Texas, by the grand jurors of said count}', duly elected, tried, impaneled, sworn and charged as such. From this recital in the indictment we must presume that the presentment was made by a legal grand jury of the proper county. This presumption must obtain until it is shown that in fact the indictment was not presented by a legal grand jury.

It devolved upon the defendant, in support of his motion to set aside the indictment, to satisfactorily show that in fact the indictment was not the act of a legal grand jury of La Salle county. It was not sufficient merely to show that there was no entry upon the minutes of the court reciting in form the organization of the grand jury. An omission to enter such proceeding upon the minutes would not vitiate the indictment. In this case the indictment is in all respects sufficient, and its presentment in open court was duly made and the fact of such presentment entered upon the minutes of the proceedings of the court. (Code Crim. Proc., arts. 414, 415, 420.) There is no express requirement of the statute that the organization of the grand jury shall be entered upon the minutes of the court, though such is the usual and proper practice, and is required by the general provision of the statute making it the duty of the clerk to keep a fair record of all the acts done, and proceedings had in the court. (Rev. Stats., art. 1107.)

. It further appears from the record in this case that upon motion of the district attorney, and before the trial of the cause was entered upon, the court caused to be entered upon the minutes, nunc pro tunc, the proper entry showing the organization of the grand jury which presented the indictment, and showing said grand jury to be a legal and duly qualified grand jury of La Salle county. This action of the court was authorized by law, and had the effect to fully supply the omission of the entry which should have been made at the time the grand jury was organized. (Hill v. The State, 4 Texas Ct. App., 559; Townsend v. The State, 5 Texas Ct. App., 574; Case v. The State, 7 Texas Ct. App., 495; Tyson v. The State, 14 Texas Ct. App., 388.) There was ample record evidence before the court to justify the nunc pro tunc entry.

It was not error to permit the file mark on the indictment to be amended in the manner stated in defendant’s bill of exception. The failure of the clerk to affix his official designation to his signature was a mere clerical omission which could be supplied at any time under the direction of the court. It was clearly proved that the indictment had been filed at the proper time, by the proper officer, in the proper court. (Code Crim. Proc., art. 204.) Even without the amendment that was made, we are of the opinion that the filing was sufficient.

• It is alleged in the indictment that the name of the deceased was “Chino,” whose other name was to the grand jurors unknown. This, we think, was a sufficient allegation of the name of the deceased. i (Willson’s Cr. Forms, 5, p. 18, and cases there cited.)

There was no error in overruling the defendant’s motion to set aside and quash the indictment.

• As to the evidence, it is positive and conclusive that the defendant committed the homicide in a cool, sedate, deliberate frame of .mind, and with a formed design to kill the deceased. So far as the testimony discloses, there was no provocation to induce the act. Express malice was sufficiently proved by the deliberate and cruel manner in which the killing was done; by the careless and indifferent manner of the defendant after the tragedy, and by the dying declaration of the deceased that the defendant killed him about four bits.

The charge of the court was full, fair and correct upon all the issues that were even in a remote degree presented by the evidence. It was as favorable to the defendant as it could reasonably have been.

[Opinion delivered January 16, 1886.]

It was satisfactorily proved that the deceased was generally known by the name of “ Chino,” although in fact that was not his true name, and that the grand jury had used reasonable diligence before returning the indictment to ascertain the true name of the deceased, but could only ascertain that his name was “ Chino.” In respect to the name of the deceased we are of the opinion that the indictment is fully sustained by the evidence.

With regard to the motion for new trial, we think it was properly overruled. As to the newly discovered evidence, no sufficient diligence to discover and obtain it before the trial is shown. On the contrary it appears from the motion, and from the affidavits in connection therewith, that by the use of reasonable diligence all of the alleged newly discovered evidence could have been discovered in time to produce it at the trial. Some of the witnesses by whom defendant states he expects to prove material facts were present when the homicide occurred, and the fact of their presence was known to the defendant. In view of the evidence adduced on the trial, and of the want of diligence on the part of defendant to discover and obtain the alleged additional testimony, we think the court did not err in refusing the new trial.

We find no error in the conviction, and it is in all things affirmed.

Affirmed.