¶1It was not error to overrule the defendant’s motion to set aside the indictment. It was the real purpose of the motion to have the indictment set aside because one of the members of the grand jury that found and presented it was not qualified to serve as a grand juror.
¶2An objection to the qualifications of a person whom it is proposed to impanel as a grand juror may be made by challenge, but in no other way shall such an objection be heard. Code Crim. Proc., art. 377; Willson’s Crim. Stats., secs. 1901, 1902; see also Owens v. The State, 25 Texas Ct. App., 552.
¶3In Woods v. The State, 26 Texas Court of Appeals, 490, there is an intimation that such an objection may be made and considered under arti*510cle 523 of the Code of Criminal Procedure, by motion to set aside the indictment, as was attempted in this case. That intimation, however, is a mere dictum, the question not being directly involved in the case, or its consideration and decision necessary. Our conclusion now is, after mature consideration, that subdivision 2, of article 523, of the Code of Criminal Procedure, refers and applies only to persons who were not impaneled as grand jurors, and that it can not be invoked for the purpose of presenting an objection to the qualification of a grand juror. If we were to hold otherwise, the manifest purpose of article 377 of the Code of Criminal Procedure, in providing that such objection might be made by challenge, but in no other manner,.would be defeated. That purpose was to make the impaneling of the grand jury, when no challenge had been interposed, conclusive of the qualifications of the members of that body, and of its legality.
¶4With respect to the possession of the cotton, we think the charge of the court was correct, and that there was no variance between allegation and proof. We think the evidence shows that the possession of the cotton at the time of the alleged theft was in the owner King. If it had been destroyed after having been removed by King from the gin to a place •of his own selection, the loss would have fallen upon him. It was under his care, management, and control after being removed from the gin.
¶5We are of the opinion that the conversation to which the defendant proposed to testify, between Shelton and himself, was res gestee—a part of the transaction of defendant coming into possession of the cotton innocently, as he claims, and that the court erred in refusing to permit him to detail said conversation. As to the credibility of the defendant’s testimony, or the weight to be accorded it, that was a matter for the consideration of the jury. Ward v. The State, 41 Texas, 612.
¶6Special charge No. 2 requested by the defendant states the law applicable to the facts upon the issue as to the manner of defendant’s acquisition of the possession of the cotton, and should have been given instead of the charge upon that issue which was given, because the charge given is in some essentials inaccurate, and calculated to mislead unprofessional minds.
¶7It would have been very proper for the court to have given special instruction No. 3 requested by the defendant as to the identity of the alleged stolen cotton with the cotton traced to the defendant’s possession. It devolved upon the prosecution to establish such identity beyond a reasonable doubt, and considering the uncertainty of the evidence upon this very material point, we think the court should have given said special instruction.
¶8. No exceptions were reserved to the charge of the court, nor of the refusal of the court to give the special instructions above mentioned, and if no other errors than those relating to the charge were apparent we *511might not disturb the conviction. But considering the case as a whole, we think the errors we have discussed require that the judgment should be reversed, that the defendant may have another trial in which all his legal rights will doubtless be accorded him.
¶9Reversed and remanded.
¶10Judges all present and concurring.