The appellant in this case was convicted in the County Court of Nacogdoches County of unlawfully receiving certain *Page 196 property which had theretofore been stolen, and his punishment assessed at a fine of $25 and twenty-four hours in jail.
The case was affirmed at a former day of this term and is now before us on motion for rehearing. No brief was filed by appellant upon the original submission of this case, and for that reason perhaps the exact point presented by his bill of exceptions was not pertinently called to the attention of the court.
Only one question for review is presented by the record and that is appellant's contention that the jury which tried him was not properly drawn, and, therefore, was an illegal jury. It appears in appellant's motion to quash the jury panel the statement quoted in the former opinion that the county judge "asked the district judge to let him appoint the same jury commissioners to draw the County Court jury for the April Term of the county court;" but the bill of exceptions goes further, and is to this effect: "And upon the hearing and consideration of said motion it was admitted by the State that the said jury as present, was drawn on the 22nd day of March, 1920, and not at the January term, 1920, nor any previous term of the County Court, but after adjournment of the County Court at the January term, 1920, and after the 15th day of March, 1920, when the grand jury had returned this bill with many others for like offenses; the county attorney being desirous of trying this case with others at the April term asked the county judge to appoint jury commissioners to draw a jury for the April term of the County Court, and the county judge being informed that the District Court would assemble a jury commission on the 22nd day of March, 1920, asked said District Court jury commission to draw the panel for the second week of the April term of the County Court, which is now the panel presented to the defendant; that said jury commission for the District Court was not sworn by the countyjudge, but was in truth and fact sworn by the district judge as is required by law to draw a jury for the September term of theDistrict Court of Nacogdoches County, Texas; that the failure to appoint a jury commission at the January term of the County Court, 1920, was not accidentally overlooked, but was intentionally not drawn, as a custom has prevailed in this county for years that there is no April term of the County Court for the trial of jury cases, as this is an agricultural section and at this time when it is farming time it is a great hardship on the farmers to take them out of their crops."
We gather from the bill of exceptions as presented, that the jury commissioners, while they may have been selected by the county judge, and requested by him to draw the jury by which appellant was tried, yet it does not appear from the bill of exceptions that they were ever in fact sworn by anybody to draw the jurors for the county court. The bill states positively that they were not sworn by the county judge, but they were sworn by the district judge to draw the jurors for the District Court. From that statement we think we are warranted in concluding that they were not sworn by anybody to perform the duties *Page 197 as jury commissioners for the County Court. Counsel for appellant urges that because the jury was not drawn at the January term as provided by the statute for drawing jurors for the County Court, that that in itself would make the jury illegal. We think counsel in this contention is going further than we can agree to, and that this question has been heretofore decided against him.
Upon the other proposition, we can see no reason why the county judge and the district judge could not, if they desired, appoint the same men to act as jury commissioners for both the District and County Court; but before their acts in performing this duty would be authorized by law, it is necessary that they be sworn not only to perform their duty as jury commissioners for the District Court, but also as jury commissioners for the County Court. It is not a question as to whether or not appellant was injured by the trial of the jury selected in the manner complained about, as will be seen from an examination of White's case, 45 Tex.Crim. Rep.. In that case the county judge had purposely failed to appoint jury commissioners for reasons given by him, and there was no contention that the jury selected by the sheriff would be unfair to the accused in that case. The county attorney asked appellant's counsel this question: "Do you claim that the right of your client will be in any way injured by his being forced to trial by a jury selected from the venire this day chosen, or that this trial would be an unfair one to his client?" and the reply was: "No, I make no such claim. I just say that this manner of selecting a jury is illegal and that this venire, on account of the manner of its selection, should be quashed." So there we have fairly and squarely before the court, not the question of injury but one of selection. Judge HENDERSON, after quite a lengthy discussion, in conclusion, uses this language: "The right of trial by jury stands upon a higher plane than expediency; and fair trial by jury means a jury selected according to the law regulating their selection and impanelment. We therefore hold that appellant was denied, by the intentional action of the judge, of the right of trial by a legal jury." See also Irwin v. State, 57 Tex.Crim. Rep., and cases therein cited.
In the case of Woolen v. State, 68 Tex.Crim. Rep., it appears that Harrison County by the Acts of the Thirty-second Legislature was created a separate judicial district. At the November term of the court after this the judge appointed jury commissioners with instructions to select a grand and petit juries for the January, March and May terms of court. The indictment in the case then under consideration was returned at the March term of that court, and a motion was made to quash because the grand jury which returned the bill was illegally drawn. Upon a hearing of that motion the judge testified that believing the statute governing the appointment of jury commissioners was directory only, that he directed the jury commissioners to draw the grand jurors and petit jurors not for the next *Page 198 term of court as the law provided, but for the three succeeding terms of court. Judge DAVIDSON, in discussing the case, uses this language:
"Wherever the Legislature has provided the method and means by which a jury may or must be selected, the judiciary is not authorized, because of some idea they may entertain of expediency or saving of cost or expense, to abrogate and set aside the plain provisions of statutory enactment." And again: "By the terms of the Constitution the Legislature provides these matters, and whether they be expedient or not, wise or not, would not justify the courts in setting aside such legislation and substituting such ideas of the court for the legislative act." And further: "We, therefore, hold that the court was without authority to have the juries, grand and petit, selected at the November term, 1911, for the first three terms of 1912, and as the indictment herein was returned at the March or second term, that the grand jury was an illegal one, and for the same reason the petit jurors would be in the same category. We are of opinion, therefore, the court should have sustained the motion to quash the indictment." In Johnson v. State, 86 Tex.Crim. Rep., 218 S.W. Rep., 496, the question arose with reference to the selection of a special venire. It seems in that case that instead of exhausting first the regular jurors for the term, that they put in the box not only the names of the regular jurors for the term but also the names of the entire special venire list which had been drawn by the jury commissioners, and that a special venire in that case was drawn from this mixed list. It was held in that case that the venire was not selected in accordance with law but in violation of its terms, and this court, in deciding that question used this language: "The Legislature having provided this means for obtaining a jury, the court was not at liberty to set it aside. The question of injury does not enter into the case. Appellant was insisting upon the legal rights he had for the selection of a jury, and he is entitled to that character of jury trial provided by law. The selection of a jury, of course, underlies the fact that he has a proper jury."
In the instant case it seems that they had not been having jury trials ordinarily at the term of court at which the appellant was tried on account of inconvenience to the farmers, and that the county judge, not from any improper motive, but as a matter of expediency and as an accommodation to the agricultural class, had not been having juries drawn to try cases at the April term of court, but, as stated in the opinions quoted, it is not a question of expediency but a matter of law, and appellant had a right to stand upon his legal rights. Upon a further investigation of the record in this case, as called to our attention by the motion for rehearing and argument, and cases cited in connection therewith, we believe we were in error in our original opinion in this case, and because it does not appear that the jury commissioners who drew the jury by which the appellant was tried were sworn to perform their duty as jury commissioners of the County Court, the former affirmance of this case will be set aside, the motion *Page 199 for rehearing granted, and the judgment reversed and the cause remanded.
Reversed and remanded.