Appellant insists with great earnestness both in his motion and upon oral argument that we were in error in sustaining the action of the trial court in refusing to quash the jury panel because summoned by the sheriff instead of having been drawn by jury commissioners.
In 1905 the Legislature authorized district judges to call special terms of court at any time by them deemed advisable. (See Art. 94, C.P.). Prior to that time special terms of court could only be called by an order entered during the then regular term. (Art. 1114, R.C.S., 1895). The law at that time provided that the jury commissioners for the regular term during which the special term was ordered, "shall, under the instruction of the court, select a venire for each week of such special term, etc." (Art. 1117, R.C.S. 1895.) Then and now the statute providing for selection of juries for regular terms of court provided that "The district court of each county shall at each term appoint" jury commissioners. (Art. 5132, R.C.S.) ,and that "the jury commissioners shall select, etc." the jury for the next regular term of court. When the Legislature in 1905 changed the law as to special terms, realizing that a call therefor could be made at any time, and that grand juries and petit juries would be necessry, provided that the judge at such special term "may appoint jury commissioners, who may select and draw grand and petit jurors, etc." (Art. 94 C.C.P.) We call attention to the change in the language used from "shall" to "may" without determining at this time whether any particular significance should be attached to it. Appellant relies principally, as we understand from his brief, on White v. State, 45 Tex. Crim. 597, 78 S.W. Rep., 1066, and Woolen v. State,68 Tex. Crim. 189, 150 S.W. Rep., 1165. All, either of these cases hold, is that a judge may not arbitrarily ignore the statute regarding the selection of juries. In the opinion in Woolen's case this language does appear:
"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."
We are in harmony with the general principles announced; but it must be borne in mind that the great jurist who wrote that opinion was construing different articles of the Code of Criminal Procedure and Revised Civil Statutes than that now under consideration which is Art. 94, C.C.P. In Ex partee Holland,91 Tex. Crim. 339, (238 S.W. Rep., 656) referred to in our original opinion, we had *Page 429 before us the question of a grand jury, but it necessitated a construction of said Article 94. In the opinion on rehearing will be found this language:
"We feel constrained to adhere to the conclusion expressed in the original opinion that the method of selecting grand and petit jurors mentioned is not exclusive, but is cumulative of other provisions of the statute pertaining to the selection, impaneling and organization of grand and petit juries in the district courts."
We understand from the learned trial judge's qualification to the bill bringing the matter forward for review that the reason he did not appoint jury commissioners was lack of time. The order calling the special term for August 7th was made on July 15th, the last day of the regular term. It would hardly have been practicable to appoint jury commissioners and expect them to report before the adjournment of the regular term. The special term convened on August 7th, and this case was tried the same day. To have appointed jury commissioners after the special term convened to draw a jury which would have been available for the trial of appellant would have resulted in delaying the dispatch of business of the court. We have said this as bearing upon the question that no arbitrary disregard is shown of the provision authorizing the selection of juries at special terms of District Courts by jury commissioners, and that in our judgment no error is shown whatever construction may be given Article 94 of the Code of Criminal Procedure.
We again venture the suggestion contained in Ex parte Holland (supra) that where special terms of court are held much the better practice is to have both grand and petit jurors drawn by jury commissioners. This method is expressly authorized by the article of the statute under consideration, and to so select them would relieve the record of any question.
The motion for rehearing is overruled.
Overruled.