When the Thirty-seventh Legislature (1st and 2d Called Sessions, Chapter 61, page 233) amended the law relative to intoxicating liquors it provided in Section 2d that "no person over twenty-five years of age convicted under any of the provisions of this act shall have the benefit of the suspended sentence law." Appellant attacks this provision as being discriminatory and in violation of Section 3 of the Bill of Rights, and criticizes our opinion for not discussing the constitutionality of the Act. He presents an interesting and persuasive argument, but favors us with no authorities supporting his position. The identical question was passed upon in the case of Pearl Davis v. State, (No. 7127, opinion November 1, 1922), holding against the contention.
Appellant urges that in disposing of his assigned error for the trial court's refusal to quash the indictment because of alleged illegality of the grand jury we misapprehended the bill of exception presenting the questions. The bill makes it clear that after excuses and exemptions had been passed upon there remained twelve legally qualified grand jurors who had made no excuses and claimed no exemptions and who had been drawn by the jury commissioners; that the trial judge stated he wanted more grand jurors from Ranger and Cisco, as said towns were not properly represented; two of the twelve remarked if the court intended to excuse any of the grand jurors they had important business and would be glad to be excused, whereupon the two were excused, and the judge requested the sheriff to summon one juror from Ranger and one from Cisco to fill out the grand jury. The bill shows that two others were summoned but fails to show whether they were secured from Ranger and Cisco. Appellant's ground for seeking to quash the indictment was that the grand jury as organized with the two last summoned men upon it, was not selected by the jury commissioners, and therefore was not a legally constituted grand jury, and therefore their act in returning the indictment was "illegal, null and void."
It may be conceded that the impannelment of the grand jury was irregular in a respect which if properly and timely taken advantage of would have availed appellant. Article 409, C.C.P., provides that,
"Any person, before the grand jury has been impaneled, may challenge the array of jurors or any person presented as a grand juror; and in no other way, shall objections to thequalifications and legality of the grand jury be heard. Any person confined in jail in the county shall, upon his request, be brought into court to make such challenge.
One ground for challenge to the array is (Art 417, C.C.P.) "That the persons summoned as grand jurors are not, in fact, the persons selected by the jury commissioners." *Page 531
We are not advised by the bill of exceptions that appellant sought to challenge the array, or that he was deprived of the opportunity to present such challenge. It was the evident purpose of the Legislature in enacting Article 409, supra, to place certain limitations of time on attacks upon the organization of the grand jury. Since the Carter case, (39 Tex.Crim. Rep., 46 S.W. Rep., 236, 48 S.W. Rep., 508, 117 U.S. 442, 20 Sup. Ct., 687, 44 L.Ed., 839) some confusion has arisen over the subject. The opinion of the Supreme Court of the United States, in said case makes it clear, we think, that said court recognized the validity of Article 409 of our Code of Procedure, but based its holding on the fact that said article had no application in the case because the grand jury that indicted Carter had been organized before the Commission of the alleged offense by him, and therefore he could not have availed himself of the right to challenge the array. The distinction seems to have been overlooked in Smith v. State, 42 Tex.Crim. Rep., 58 S.W. Rep., 97, but was adverted to in Kipper v. State, 42 Tex. Crim. 613, 62 S.W. Rep., 420, and was recognized and discussed in McCline v. State, 64 Tex.Crim. Rep., 141 S.W. Rep., 977. The validity of Article 409, supra, has been recognized by this court in many cases which will be found collated in the notes under said article in 2d volume, Vernon's Criminal Statutes. We are inclined to the view that an attack such as here made upon the grand jury comes too late when presented for the first time upon motion to quash the indictment where no showing is made that appellant was deprived of a right to make the attack by challengein limine. Neither do we regard this holding in conflict with our decisions to the effect that the acts of purported grand juries composed of more or less than twelve men may be attacked even after conviction for that such bodies are not in fact grand juries but are attempting to function as such in violation of Article 5, Section 13 of the State Constitution. In the recent cases of Russell v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 240, Saulter v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 242 and Acuff v. State, (No. 7175, decided November 8, 1922), Article 409, C.C.P., was not considered, and the opinions were based upon the fact that the jury commission itself, which selected the grand jury, was appointed at a time not authorized by the statute.
For the reasons given we conclude the motion for rehearing should be overruled, and it is so ordered.
Overruled. *Page 532