Appellant again contests the invalidity of the grand jury which found the indictment on the ground that ten of these grand jurors had served on the first panel that evidently found an indictment against him at the same term of the court, and he says, therefore, that having already previously heard the testimony against him, they were prejudiced against him and were not fair jurors. Evidently the trial court, fearing some irregularity or error in the proceedings relative to the summoning and impaneling of the first grand jury, caused them to be again summoned and assembled to perform their duties. Such practice is authorized by law, Art. 372, C. C. P., providing as follows:
"A grand jury discharged by the court for the term may be reassembled by the court at any 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."
It appears that two of such first grand jurors failed to appear or at least were not again selected, and the careful trial court proceeded to fill the panel under the statute above quoted, and the indictment against this appellant found by the first grand jury was dismissed.
The same sixteen men that were first summoned as prospective grand jurors were again summoned, and the grand jury returning this indictment was selected therefrom. This grand jury, when empaneled, was challenged by appellant on the ground of an alleged discrimination against appellant, who was a Mexican, and that no person of such blood was found thereon. *Page 281 This challenge was overruled, and such action of the court is the basis of Bill of Exception No. 1.
Bill No. 2 is devoted exclusively to the alleged discrimination against the Mexican race. Appellant showed some twelve poll taxes paid by men of Mexican names, but went no further in showing whether or not they were qualified under the law to act as grand jurors. We do not think that any discrimination is shown under the proof here presented. See Lugo v. State, 136 Tex.Crim. R., 124 S.W.2d 344.
Bill No. 3 complains because of the trial court's ruling in allowing the introduction of an alleged written statement on the part of appellant concerning the death of Julio Herrera, it being contended that same is shown to have been involuntarily made and signed under compulsion exercised by an officer. We quote that portion of the bill as qualified by the court and accepted by appellant as follows:
"The witness, Leroy Boling, Jr., testified that he was present when the defendant made his statement concerning the offense with which he is charged, and that they discussed the statement with the defendant for thirty or forty-five minutes, which conversations were in English, and the questions were directed to the defendant in English and he answered the questions in English, and did not at any time ask for an interpreter. He said that he understood English and could read English, but he couldn't write English. And that Capt. Davidson told him, 'If this is right, put a mark there. Sign your name,' and refer the Court to the statement of facts, pages 42, 43, and 44. And in addition thereto, in the Court's Main Charge, Par. 19, the jury was instructed to not consider the statement of the defendant for any purpose whatsoever unless they believed from the evidence beyond a reasonable doubt that the defendant understood the contents of such statement, and that such statement was freely made by the defendant without compulsion or persuasion, and refer the Court to Par. 19 of the Court's Main Charge, shown at page 21 of the transcript."
We think the court was correct in submitting such confession to the jury, guarded by his charge relative thereto, there being no objections filed to the charge.
The statement just above referred to seems to bear a cross mark or an "X" where the place for a signature is indicated, and the witnesses showed, as well as appellant testified, that he made the "X" or cross mark, although appellant says that he did so *Page 282 at the direction of an officer. The signature line does not bear the name of the appellant; in fact it bears no name, but merely the mark, and it is therefore claimed to be an incomplete instrument and of no force and effect.
Art. 727, C. C. P. provides for such a contingency where one is unable to sign his name, which provision reads as follows:
"* * * If the defendant is unable to write his name, and signs the statement by making his mark, such statement shall not be admitted in evidence, unless it be witnessed by some person other than a peace officer, who shall sign the same as a witness."
The instrument in question is witnessed by Leroy Boling, Jr., Capt. E. L. Posey, D. R. McWilliams, and Harvey Shaw, the latter two persons not appearing to be peace officers.
We express the opinion that the making of this mark on the bottom of this instrument is a signature thereto. We find a similar question passed upon by the Supreme Court of California in the case of In re Walker's Estate, 42 Pac. Rep. 815, in which it is said:
"To 'sign', in the primary sense of the word, is to make any mark. To sign an instrument or document is to make any mark upon it in token of knowledge, approval, acceptance, or obligation. The signature is the sign thus made."
Again, in the case of Board of Trustees of Seventh St. Colored M. E. Church v. Campbell, 21 Southern, 184, the Supreme Court of Louisiana quoted from Sweet's Law Dictionary as follows:
"In the primary sense of the word, a person 'signs' a document when he writes or marks something on it in token of his intention to be bound by its contents. In the case of an ordinary person, signature is commonly performed by subscribing his name to the document, and hence 'signature' is frequently used as equivalent to 'subscription,' but any mark is sufficient if it shows an intention to be bound by the document. Illiterate persons commonly sign by making a cross."
In the instant case, we think appellant's signature to such instrument is found by his making a cross.
We are of the opinion that this cause was properly disposed of in our original opinion, and the motion will therefore be overruled. *Page 283