Relator is under indictment for robbery. He claims that the indictment was returned by an allegal grand jury. It was not selected by a jury commission, but by the sheriff under a writ issued under authority of the court at a special term.
The statute declares that the district judge, at each term of the District Court, shall appoint jury commissioners who shall select sixteen persons to be summoned as grand jurors for the next term of the district court, and says that: "If, for any cause, there should be a failure to select and summon a grand jury, as herein directed, . . . he shall, on the first day of the organization of the court, direct a writ to be issued to the sheriff, commanding him to summon . . . persons to serve on the grand jury." (Code of Crim. Proc., Art. 384, 389 and 399).
Article 94 of the Code of Crim. Procedure confers upon the district judge the authority, when he deems it advisable to do so, to call a special term of court, and in this article it is said: "The said judge may appoint jury commissioners, who may select and draw grand and petit jurors in accordance with the law; . . . provided, that, in the discretion of the judge, a grand jury need not be drawn or impaneled."
At the time that the special term was called, the trial judge refrained from directing that the jury commissioners should select grand jurors for the special term because, from his acquaintance with the docket and his view of the necessity for a special term and the business that would come before it, did not believe that a grand jury would be necessary.
There is no statute of which we are aware providing for the method of selecting grand jurors by the jury commission other than Article 384 of the Code of Crim. Proc., which requires the appointment of jury commissioners at the preceding term, and Article 389, which requires that the jury commissioners then appointed shall select the jury for the succeeding term. It was the opinion of the Hon. W.W. Walling the learned judge who organized and conducted the court that the only procedure by which the grand jury could be selected was that provided by Article 399, namely, to cause them to be selected by the sheriff under a writ duly ordered and issued. *Page 341
The relator challenges the correctness of this position, contending that the action of the trial judge in purposely refraining from providing for a grand jury at the special term by causing their selection by jury commissioners was such an arbitrary disregard of the statutory provision of the state as rendered the grand jury impaneled without its selection by a jury commission void and indictments found thereby null. In support of this view, we are referred by him to the case of White v. State, 45 Tex.Crim. Rep., which was one in which there was an appeal from a conviction. A motion to quash the venire was made and overruled. From a statement of the judge presiding, it was made to appear that pursuant to his custom, he purposely refrained from an appointment of jury commissioners as required by the statute for the reason that the jurors thus selected were not diligent in attending, and that expense would be curtailed by having the jurors selected by the sheriff.
The Constitution confers upon one accused of crime the right of trial by jury and declares that the right shall remain inviolate, and provides that the Legislature shall pass laws to regulate it, and preserve its purity and efficiency. It was doubtless correctly held that the arbitrary disregard of the law so enacted was an abridgment of the right conferred by the Constitution.
Woolen's case, 68 Tex.Crim. Rep., to which we are also referred, was an appeal from a conviction in which complaint was made of the action of the trial court in overruling the motion to quash the indictment. The facts disclosed that the trial judge, at the previous term of court, selected jury commissioners and they, upon his direction, selected grand jurors not only for the next but for several succeeding terms of court, and that the grand jury indicting the accused was impaneled, not at the next but one of the subsequent terms of court and composed of men selected by the jury commission named, as above stated. The reason given for thus proceeding was, in substance, that the trial judge regarded that as a better way than the one provided by law. The court held that there was error in failing to sustain the motion to quash the indictment. Woolen's case was followed in Mayfield's case, 68 Tex.Crim. Rep., and Anderson's case,71 Tex. Crim. 253; 158 S.W. Rep. 1198, and in Donegan's case, 89 Tex.Crim. Rep., 230 S.W. Rep. 166. It will be noted that in each of these cases there was an appeal from a judgment of conviction and from an order overruling a motion made in the trial court to quash the indictment.
The matter now under consideration is not an appeal from a judgment of conviction, but an attack on the indictment in a collateral proceeding. In these particulars, the procedure in this matter differs in a substantial way from that pursued in the cases cited. We are cognizant of no instance of a collateral attack upon an indictment in which this court has annulled it except in cases in which the *Page 342 constitutional provision concerning the organization of the grand jury has been disregarded. Harper v. State, 90 Tex. Crim. 252; Ogle v. State, 43 Tex.Crim. Rep.. And in those cases, the authority of this court was not exercised until after the accused had been convicted and either appealed or lost his right of appeal. This is to say, he had exhausted his remedy in the trial court. It is on the trial and not by way of habeas corpus that the motion to quash the indictment should be urged. Ex parte McKay, 82 Tex.Crim. Rep.. In our opinion, the matter here under investigation differs from the cases relied upon not alone in the matter of procedure but in substance also. In the instant case, we think the trial judge in failing, at the previous term of court, to provide for the selection of the grand jury at the special term, did not act in an arbitrary manner in disregard of the provisions of the statute. He did not foresee the need of a grand jury at the special term. In the light of his knowledge of the matters that would come before it, he decided that no grand jury would be required. None was required at the time he so determined, but subsequent events made one necessary. In our opinion, his previous conduct was not such as prevented its selection. The conditions under which he proceeded apparently come within the purview of Article 399, wherein it is said that if "for any cause," there should be a failure to select a grand jury, one may be summoned by the sheriff under an order and writ directed by the court. The only other articles of the statute referring to the matter are those which contemplate the selection of the grand jury in advance, — Art. 384 and 389, supra.
We are not prepared to say, however, that the trial judge would have been impotent to appoint jury commissioners during the special term and have them select the jury. That matter, however, is not necessarily involved inasmuch as that was not the method selected in the instant case. We are firm in our opinion, however, that the procedure adopted to secure the grand jury after it was determined that the public business required one, being one of the methods designated by the Legislature, there is no such vice in its selection as may be successfully assailed in an application for writ of habeas corpus. See King v. State,90 Tex. Crim. 289, 234 S.W. Rep., 1107; Ex parte Clemming,90 Tex. Crim. 261, 234 S.W. Rep., 667; Sanchez v. State,39 Tex. Crim. 390.
The order of the district court in refusing to discharge the relator is affirmed.
Affirmed. *Page 343
ON REHEARING. March 22, 1922.