Appellant moves for rehearing, urging that the opinion relied upon and cited as supporting our holding in the original opinion, viz: King v. State, 100 S.W. 387, was and is wrong in principle. We do not agree with appellant. Appellant also insists that Art. 2133, Revised Civil Statutes, 1925, quoted in our original opinion, has application only to petit jurors and not grand jurors, — and that our Code of Criminal Procedure expressly provides in Art. 339 what shall be the qualifications of grand jurors, and appellant's conclusion is that conceding the article to be as is stated in the civil statutes, it is wrong to attempt to make it apply to grand jurors as well as petit jurors.
Art. 339, C. C. P., provides six grounds of qualification for grand jurors, the first and only applicable one of which is that *Page 265 to be qualified for a grand juror one must be a citizen of the state and county and qualified under the Constitution and laws to vote in such county. Art. 354, C. C. P., lays down three questions to be propounded to prospective grand jurors, which being asked and answered in the affirmative, — in the absence of contest, — is sufficient to satisfy the court before whom the proceeding is had, and entitled such persons to be sworn and serve as grand jurors. It will be noted that by the revision of 1925 there was omitted from said Art. 354 the requisite theretofore appearing in said article, viz.: that only in case it be made to appear that the requisite number of grand jurors could not be found in the county who had paid their poll taxes, — the court could accept and hold qualified those citizens who had not paid their poll taxes. It was formerly provided in Art. 405, C. C. P., 1916, and evidently as part of the test to be used in selecting grand jurors, that the court could only use citizens who had paid their poll taxes, until it had been ascertained that there were not enough citizens in such county who had paid their poll taxes to constitute the grand jury. The omission of this requisite from old Art. 405, supra, which is now Art. 354, C. C. P., must be held intentional.
As we understand the record before us, no objection for any such reason as above discussed was presented before the trial of this case. The question being attempted to be raised after the trial, we think the propositions relied upon were decided adversely to appellant in Stewart v. State, 123 Tex. Crim. 269.
The motion for rehearing is overruled.
Overruled.