299 S.W. 437 | Tex. Crim. App. | 1927
Lead Opinion
Selling liquor is the offense, punishment fixed at confinement in the penitentiary for a period of one year and nine months.
Appellant was indicted at the regular January term of the District Court of Hopkins County in 1927. The grand jury was, under the direction of the court, summoned by the sheriff because there had been no provision made at the previous term of the District Court for the selection of grand jurors for the succeeding term by a jury commission. The indictment was returned on the 3rd day of February, 1927, and on the 4th day of February the appellant was arrested under the indictment. The regular term was adjourned on the 8th day of February, and the trial took place at a special term of the District Court called after the adjournment of the regular term.
Appellant made a motion to quash the indictment upon the ground that the grand jury which found the indictment was not selected by a jury commission appointed at the preceding term, and that the omission was intentional and arbitrary. The motion was overruled. The ground upon which it was overruled was that at the time the grand jury was organized and impaneled the appellant was confined in the county jail and made no motion to quash or challenge the array of the grand jury and was not brought into court for that purpose. The law contemplates that at each term of court the trial judge shall designate and appoint jury commissioners, and requires that they select a list of persons from whom a grand and petit jury at the succeeding term shall be organized. See Chap. 1, Title 7, C. C. P., 1925.
In Art. 348, C. C. P., it is declared that "if there should be a failure, from any cause, to select and summon a grand jury as herein directed," a grand jury may be organized by the court from persons summoned by the sheriff under a writ issued by the court. Under the statutes controlling, as construed in many decisions of this court, the trial court is not privileged to organize a grand jury from persons summoned by the sheriff when the statutory direction declaring that at the previous term the court should appoint jury commissioners to select persons from whom the grand jury should be organized has been *144
arbitrarily disregarded. White v. State,
"That those summoned as grand jurors are not in fact those selected by the jury commissioners."
And Subd. 2, Art. 361, supra, which reads thus:
"In case of grand jurors summoned by order of the court, that the officer who summoned them had acted corruptly in summoning any one or more of them."
The law contemplates that one who is charged with an offense and who is under arrest or in custody or under bond, to avail himself of either of the irregularities mentioned in Art. 361, supra, must do so by a challenge to the array before the grand jury is impaneled. In a recent case it was said:
"If, under such circumstances — that is, he being under arrest or under bond charged by complaint with an offense — his right to challenge the array would be waived unless exercised by him before the grand jury was impaneled." (Gentry v. State,
From the former announcements of this court it seems that the first ground of the challenge to the array, as set out in Art. 361, supra, has not been deemed applicable in instances in which no jury commissioners were appointed. Chap. 1, Title 7, C. C. P., 1925. In addition to the precedents cited above, reference is made to Powell v. State,
Appellant insists that the organization of the special term of court at which he was tried was void. This claim is based upon the construction placed upon the revision of the civil and criminal codes of the state in 1925. Passing on another phase of the statutes, this court has heretofore expressed the opinion that the repealing clause accompanying the revised Code of Criminal Procedure was not subject to a construction so restrictive as to exclude the consideration of the civil statutes. See Compere v. State,
"The District Court shall have original jurisdiction in all criminal cases of the grade of felony." (Const. of Tex., Art. 5, Secs. 7 and 8.)
In Art. 5, Sec. 7, of the Constitution it is said: *146
"The Legislature shall have power by general or special laws to authorize the holding of special terms of the court or the holding of more than two terms in any county for the dispatch of business."
In Art. 1920 of the civil statutes of 1911 the following appears:
"Whenever a district judge deems it advisable to hold a special term of the district court in any county in his district, such special term may be held; and such judge may convene such term at any time which may be fixed by him. Such district judge may appoint jury commissioners, who may select and draw grand and petit jurors in accordance with the law. Such jurors may be summoned to appear before such district court at such time as may be designated by the judge thereof. In the discretion of the district judge, a grand jury need not be drawn or impaneled. No new civil cases can be brought to aspecial term of the District Court."
It is true that these same provisions were formerly embraced in the C. C. P. 1911, Arts. 93 and 94. However, the necessity therefor is not apparent, and the omission of them in the revision of 1925 is not believed to impair their efficacy in authorizing the organization of district courts, and when so organized the provisions of the Constitution operate upon their jurisdiction. See Ex Parte Young, 49 Tex.Crim. Rep.; Ex Parte Martinez, 66 Tex.Crim. Rep.; Mayhew v. State,
The judgment is reversed and the cause remanded.
Reversed and remanded.
Addendum
A motion for rehearing in behalf of the state is presented by the honorable District Attorney of the Eighth Judicial District, which is based largely upon what is conceived to be a conflict between our opinion in the present case and that in Gentry v. State,
It is suggested in the motion for rehearing that if our views are adhered to as indicated in our former opinion the order of the court should direct that the prosecution be dismissed under the present indictment. Whether the failure to appoint a jury commission was an arbitrary and willful disregard of the statute necessarily involved a question of fact which might appear differently upon another trial, hence we thought it improper to order a dismissal. If it be known to the prosecuting officer that the facts will be the same as appears in this record, prosecution under the present indictment may be dismissed and another indictment secured.
The state's motion for rehearing is overruled.
Overruled.