In his motion for rehearing appellant insists that by both this court and the trial court he has been denied a substantial right in the overruling of his challenge to the array of jurors. The point made is that the jurors were not selected by a jury commission but summoned by the sheriff, and that the failure to appoint a jury commission entitled the appellant to set aside the panel. The right to challenge the array and the procedure therefor is set out in Arts. 608, 609 and 641, C. C. P., 1925. The trial judge seems to have been of the opinion that the motion could be sustained only by proof that the sheriff had acted corruptly, and that such proof the appellant disclaimed an intention to tender. Such, it is true, is the language of the statutes mentioned, but in instances where the statutory method of selecting jurors has been arbitrarily disregarded, a motion to set aside the panel will be entertained, and upon sufficient facts sustained. This is the ruling in White v. State, 45 Tex.Crim. Rep.. Considering bill No. 8, upon which reliance is had to present the question, in connection with the affidavits filed challenging the array, we find that the appellant set up the fact that no jury commissioners had been appointed; and calling attention to Art. 2104, R. S., 1925, and others, requiring the appointment of jury commissioners at a previous term, he points to Arts. 2109-2116, R. S., stating:
"* * * and says that the array of jurors summoned in this court for the trial of this cause, as summoned by the officer so summoning the said jurors for the trial of this cause in this court on this day, has not been summoned in accordance with the plain and express provision of the law of the State of Texas relative thereto."
Neither in the motion nor in the bill of exceptions is there any statement or averment that the failure to appoint jury commissioners was due to any arbitrary action upon the part of the trial court. The right to set aside the panel for the reasons stated does not accrue where the failure to select a jury commission is due to a good cause, but accrues only when the failure reflects an arbitrary or wilful action upon the part of the trial court. See White v. State, supra; Woolen v. State, 68 Tex.Crim. Rep.; Ex Parte Holland, 91 Tex. Crim. 343;
*Page 181 Sanchez v. State, 94 Tex.Crim. Rep.; Gray v. State,99 Tex. Crim. 305; Bennett v. State, 95 Tex.Crim. Rep.; King v. State, 90 Tex.Crim. Rep.; also Art. 640, C. C. P., 1925.
The only averment touching the evidence which the appellant desired to introduce is stated in the bill in these words:
"* * * that the evidence wished to be introduced was as to what the county clerk and the judge of the court, E. M. Tanner, would testify as to the selection of jurors by jury commissioners in the past four or five years and the custom and practice in this court as to such selection of juries by jury commissioners."
This statement is that the appellant expected to show what the witnesses would testify to with reference to the selection of jury commissioners for the past four or five years, and the custom and practice of the court with regard thereto, but fails to state in what respects, if any, the custom and practice of the court were violative of the statutes in question. To entitle the appellant to quash the panel, it was necessary that he introduce testimony to show not only that the court in the present instance had failed to select jury commissioners, but that in doing so his action was wilful or arbitrary. This proof might be made by showing the custom and practice, but in the absence of something in the bill of exceptions showing what the custom or practice was, this court is not authorized to assume that it was other than legal. To invoke a review of the ruling of the trial court, it was necessary that the bill of exceptions show to this court that the ruling was wrong. In the absence of such a showing, the presumption obtains that it was justified.
Appellant, in his motion for new trial is more specific, but the matter relied upon for a reversal is not one that may be preserved by a motion for new trial. The jury, however impaneled, might have acquitted the appellant or rendered a verdict to his entire satisfaction. If so, the verdict would have been binding upon the State. To allow one complaining of an irregularity which would not render the jury void, to first raise the question on the motion for new trial, would accord him the privilege of an experimental trial in which he might be acquitted but took no chance of a legal conviction. We will say that the custom and practice of ignoring statutory provisions with reference to the appointing of jury commissioners has never received the sanction of this court, but is condemned in the cases mentioned above, notably, White v. State, Woolen v. State, and others. If, pursuant to a general custom, the trial court ignored the statute requiring the appointment of a jury commission, this court would not hesitate to reverse the judgment, provided *Page 182 the motion was made in limine and in a bill of exceptions showing that the proof was tendered was preserved and the matter brought forward in a condition authorizing its review.
The motion for rehearing is overruled.
Overruled.