State v. Gonzales

26 Tex. 197

Opinion

Bell, J.

The evidence heard by the Court below upon the special plea, or motion to set aside the indictment, does not disclose the fact that the person who acted as District Attorney was present with the Grand Jury “ when they were discussing the propriety of finding the indictment, or voting upon the same.” Nor does the Judge below put his ruling upon the ground that the District Attorney, or the person who acted as such, was present with the Grand Jury at an improper time, or that he exercised any improper influence. The court seems to have acted solely upon the idea that the person who acted as District Attorney was not lawfully authorized to do so.

It was not proper in this manner to try the question of the light of any one to discharge the duties pertaining to the office of District Attorney, nor was it proper to quash or set aside the indictment because the person who acted as District Attorney was not empowered by law to do so. The indictment was the act of the Grand Jury. It is a part of the duty of the District Attorney to prepare judgments under the direction of the Grand Jury; but the powers and duties of the Grand Jury do not cease because there may happen to be no District Attorney. In case of a vacancy in the office of District Attorney, or in case of the District Attorney’s temporary disability to act, or in any particular case where there might exist special reasons why he should not net, any other competent person might act in the preparation of indictments, by the authorization of the court.

We are of opinion that the court below erred in setting aside the indictment for the reason given in the judgment. It is ordered that the judgment of .the court below be reversed, and the cause remanded.

Reversed and remanded.