The opinion
ON MOTION FOR REHEARING.
MORROW, Presiding Judge.
In his motion for rehearing appellant insists that Bill of Exception No. 8 reflects reversible error in that it is shown that the special venire was prematurely drawn. The bill recites in effect that appellant insisted that the court was without jurisdiction because the order changing the venue failed to reflect a judgment of the District Court of Comanche County declaring a mistrial. Further, it was urged that the indictment had not been filed in the District Court of Coryell County. The bill embraces a statement to the effect that appellant showed the court that the special venire was drawn before the record was received from Comanche County.
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We quote from the bill as follows: “And be it further remembered that the defendant insisted that the District Court of Coryell County, Texas, had no juridiction to enter any orders in this case, and that all orders made and entered, are and were void, and if not absolutely void, such preliminary matters as required by the statutes are now before the court and called to its attention before the announcement of ready, and an objection timely lodged to the jurisdiction of the court.”
The bill of exception is qualified to show that the clerk failed to place his file mark on the indictment and other original papers at the time they were received, and that the court ordered said papers filed as of the date they were received, which day was prior to the convening of the January term of the District Court of Coryell County, at which appellant was tried. The caption shows that the court convened on the 8th of January, 1934. The clerk’s certificate to the transcript of the proceedings incident to changing the venue bears date the 12th of January, 1934, and embraces a recital to the effect that the original papers accompanied said transcript. Manifestly, the court’s qualification to the bill of exception contradicts the record as to the time the transcript was forwarded to the District Court of Coryell County. However, the trial was held on the • 16th of February, 1934, which was several days after the transcript and original papers had been received. The order changing the venue recites that there had been a mistrial in Comanche County, and embraces a sufficient recital of the reasons of the trial judge for changing the venue. The order is in proper form and the indictment and other original papers were on file in the District Court of Coryell County at the time the trial began.
Appellant’s objection to proceeding with the trial on the ground that the court was without jurisdicion is not tenable. If it should be conceded that the bill of exception is sufficient to show that the special venire was drawn two days prior to the time the transcript was received, it is observed that appellant made no effort to have the venire quashed or set aside. He contented himself with interposing objection to the jurisdiction of the court. But he insists that the matter presents fundamental error. It is well settled by the decisions of this court that unless a motion to quash a special venire is timely and properly! made, objections to the drawing thereof are waived. Kinch v. State 156 S. W., 649 ; 26 Texas Jur., 638. In Buie v. State, 1, Texas App., 452, it is shown that the accused moved for a new trial on the ground that the jurors impaneled
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to try him, and who did try him, were not the regular jury summoned for the term, and because none of the regular jurors were first called or challenged. In concluding that the question was raised too late, the court said: “The objection, in view of these facts, is not tenable. Defendant did not, it appears, challenge either the array or the particular jurors, * * * but accepted the jury as summoned. He, by this course, waived any rights he might have had, and cannot now be heard to complain. Nor could such an error, if such it was, be reached by motion for a new trial.”
In the present case, as already pointed out, appellant merely challenged the jurisdiction of the court. He made no effort to have the special venire set aside and appears to have objected to no jurors on the ground he now urges. We are unable to uphold the contention that fundamental error is presented.
Bill of Exception No. 7 shows that the trial court declined to instruct the jury to disregard the testimony of Monte Sims to the effect that R. C. Tipton left some money with Cropper to be delivered to appellant. In this connection, the court instructed the jury to disregard said testimony if they failed to believe beyond a reasonable doubt that appellant had conspired with Tipton and Monte Sims to kill or rob the deceased. It is appellant’s contention that Monte Sims’ testimony alone estabished a conspiracy. We reached the conclusion in the original opinion that the testimony was sufficient to corroborate Monte Sims, who was an admitted accomplice. If such conclusion was correct, the trial court was not in error in declining to give the requested instruction. We quote from Steele v. State, 223 S. W., 473 , 87 Texas Crim. Rep., 588 , as follows: “It is not necessary that a conspiracy be established
aliunde,
before the acts and declarations of the co-conspirators, made in the absence of the accused, become admissible in evidence. If such were the rule, there would be no need for admitting against the accused on trial such acts and declarations of co-conspirators. The case would be already made out. We are of opinion, however, that there must be testimony other than that of declarations of co-conspirators, which will tend to show an acting together of the parties, and unless there be such evidence other than such declarations, the conspiracy is not made out. We also think that in every case where the issue of conspiracy is contested the trial court must affirmatively charge the jury that they must not consider as against the accused on trial, the acts and declarations of the alleged co-conspirators, unless it be shown beyond a reasonable doubt that there was in fact a conspiracy
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or an acting together of said parties in such criminal enterprise. Arnold v. State, 9 Texas App., 435; Dungan v. State, 39 Texas Crim. Rep., 115 ; Luttrell v. State, 31 Texas Crim. Rep., 493 ; Serrato v. State, 74 Texas Crim. Rep., 413 , 171 S. W., 1133 .”
We are constrained to adhere to our original conclusion that the accomplice Sims was sufficiently corroborated. It follows that Bill of Exception No. 7 fails to reflect error.
Our discussion of Bill No. 7 is also applicable to the matter brought forward in Bill of Exception No. 17.
It is insisted that we erroneously disposed of Bill of Exception No. 27. Said bill was thoroughly considered originaly as Judge Hawkins entertained the view at the time that it reflected reversible error. After a careful re-examination of the bill in the light of the motion for rehearing we are constrained to adhere to the conclusion stated in the original opinion.
A careful examination of the record in the light of the motion for rehearing leads us to the conclusion that the judgment of affirmance should be sustained.
The motion for rehearing is overruled.
Overruled.