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, 290 S.W. 543. When the facts of the two cases are understood we think there is no conflict. In Gentry's case a jury commission was appointed as *Page 147 the law directs. The point there arose as to an irregularity in the operation of the commission. The trial judge objected to four of the grand jurors whom the commission had selected, erased their names from the list, and directed the commission to select others in their stead, which was done. So the real point involved was that the grand jurors brought into court were not the ones selected by the jury commission, because the four first selected were not included in the list, thus coming directly under subdivision 1, Art. 361, C. C. P. (1925), which provides that a challenge to the array is available on the ground "that those summoned as grand jurors are not in fact those selected by the jury commission." The record showing that Gentry was in a position where he might have exercised such challenge to the array, it was held that his failure to do so was a waiver of his right to complain. In the present case no jury commissioners were appointed at all at the preceding term of court to select a grand jury, and such failure was held under the showing made in the record to have been an arbitrary and willful disregard of the plain provisions of the statute, hence a different rule is applied, as is pointed out in our original opinion.
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.