In his motion for rehearing appellant reiterates his contention *Page 244 that he was indicted by an illegal grand jury, and, further, that under the circumstances revealed by the record, he had the right to attack the legality of the grand jury by a motion to quash the indictment.
It appears from bill of exception No. 1 that Judge Montague of the 112th District Court of Pecos County impaneled the grand jury for the January term of the court on the 2nd day of January, 1939, and that later he discharged said grand jury for the term. During the same term of court Judge Montague resigned and a special judge was elected by the bar to preside during the remainder of the term of the court. During the same term of court appellant was charged by complaint in the justice court with the offense of theft of cattle, and, upon waiving an examining trial, entered into bond for his appearance before the district court. This complaint was filed after Judge Montague had discharged the grand jury for the term. On the 23rd of January the special judge elected by the bar to continue the term of court impaneled a grand jury which consisted of ten men who had been members of the grand jury which Judge Montague had discharged. Upon finding that two members of the grand jury failed to appear, the judge impaneled ten men who had served originally upon the grand jury and two other men who had not served upon the original grand jury. It appears that the twelve men, after being duly sworn and impaneled, retired to deliberate and thereafter returned an indictment into open court charging the appellant with theft of cattle, being the same offense with which he was charged by complaint in the justice court with having committed.
It appears from the record that prior to the trial of the case against appellant the sheriff who had served during the term of court at which appellant was indicted had died. Whether Judge Montague ordered that the grand jury be reassembled is not made to appear by direct testimony. However, a deputy sheriff testified that he had received orders to summon the grand jury to appear on the 23rd of January. He did not recall that Judge Montague gave him the order. He testified, further, that he summoned the twelve grand jurors who had served originally on the grand jury and that only ten appeared. The clerk of the court testified that no minute entry had been made setting aside the order discharging the grand jury and directing that they be reassembled. Under the circumstances, appellant insists that he was indicted by an illegal grand jury.
Art. 372, C. C. P., provides: "A grand jury discharged by the court for the term may be reassembled by the court at any *Page 245 time during the term. If one or more of them fail to reassemble, the court may complete the panel by impaneling other men in their stead in accordance with the rules provided in this chapter for completing the grand jury in the first instance."
Art. 358, C. C. P., reads as follows: "Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications 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."
Art. 359, C. C. P., provides: "By the array of grand jurors is meant the whole body of persons summoned to serve as such before they have been impaneled."
Art. 360, C. C. P., reads as follows: "A grand juror is said to be 'impaneled' after his qualifications have been tried and he has been sworn. By 'panel' is meant the whole body of grand jurors."
Art. 361, C. C. P., provides: "A challenge to the array shall be made in writing for these causes only:
"1. That those summoned as grand jurors are not in fact those selected by the jury commissioners.
"2. In case of grand jurors summoned by order of the court, that the officer who summoned them had acted corruptly in summoning any one or more of them."
Art. 506, C. C. P., reads as follows: "A motion to set aside an indictment or information shall be based on one or more of the following causes, and no other:
"1. That it appears by the records of the court that the indictment was not found by at least nine grand jurors, or that the information was not based upon a valid complaint.
"2. That some person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or were voting upon the same."
Appellant's attack goes to the organization of the grand jury after it had been recalled. If it should be conceded that the organization was not in strict compliance with statutory requirements because of the fact that no order was shown to have been made by Judge Montague setting aside the order discharging the grand jury and directing that they be reassembled, the opinion is expressed that appellant's objection came *Page 246 too late when he undertook at a subsequent term of court to attack the legality of the grand jury by a motion to quash. In this connection it is not clear that there was any irregularity of sufficient gravity in reimpaneling the grand jury to warrant us in holding that it was an illegally constituted body. See Millikin v. State, 296 S.W. 547. As already pointed out, ten men composing the grand jury which had been originally impaneled appeared in answer to a summons by the deputy sheriff. Two others who had served on said grand jury, although summoned by the deputy sheriff, failed to appear. Under the circumstances, the panel was completed by calling two other men to take the places of those who failed to appear. Thereafter the entire grand jury was sworn and impaneled. At all events, prior to the time that the grand jury was reassembled and impaneled appellant had been arrested and, upon waiving an examining trial, had given an appearance bond. It was therefore incumbent upon him, if he desired to question the legality of the grand jury, to challenge the array. This he failed to do. He is in no position to excuse himself by saying that he was not aware that the grand jury was to be impaneled. Being under a bond to appear before the district court, it was incumbent upon him to keep himself advised as to the proceedings of the court during that term. Having been arrested, appellant was not within the exception to the operation of Articles 358 and 506, which exception is to the effect that the accused may by motion to quash the indictment take advantage of the same question which would have been available in the challenge to the array provided he had not been arrested or the offense had not been committed at the time of the impaneling of the grand jury which returned the indictment against him. Powell v. State,269 S.W. 443, and authorities cited. Another exception may be found in the decisions holding that the act of purported grand juries composed of more or less than twelve men may be attacked even after conviction upon the ground that such bodies are not in fact grand juries, but attempted to function as such in violation of Art. 5, Sec. 13, of the State Constitution. Powell v. State, supra; Ex parte Reynolds, 34 S.W. 120. This exception has no application to the present case. A third exception to the application of the provisions of Arts. 358 and 506 may be found where the record shows an arbitrary disregard of the statutory provisions relating to the manner of selecting the grand jurors. The instant case fails to fall in this exception. In view of our discussion, we are constrained to adhere to the conclusion expressed in the original opinion. *Page 247
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.