Inasmuch as I deem the principal question discussed by the court, to wit, the impanelment of the grand jury which found the bill of indictment, important, as being jurisdictional, and differing as I do as to this matter with the conclusion reached by the court, I consider it proper to present my views on the question.
The indictment was found by a purported grand jury of Anderson County. The term of the district court at which the indictment was presented began on the 24th day of April, 1899, and the grand jury for the term was duly organized, impaneled, and sworn at said time. Said grand jury was afterwards, during the same term, on the 22d of May, discharged; having reported to the court that they had completed their labors. On June 20th thereafter the court ordered the said grand jury to reconvene. The sheriff was directed to resummon the said twelve men composing said grand jury. Afterwards, on the 26th of June, 1899, all twelve of the members composing said grand jury reported to the court. One of the original twelve, to wit, J.L. Tucker, appears to have been challenged by the State as a grand juror, on the ground that he was related to Jim Stafford, deceased (the grand jury being recalled to investigate his death), and also that he had contributed to a fund to prosecute accused, Ed Matthews. The court sustained the challenge. The court on some account recalled Tucker, and appellant objected to the court recalling him, stating at the same time that he did not wish his objection to be *Page 52 construed as a challenge; that he did not challenge him. Thereupon the judge ordered said grand juror to stand aside, partly on his own motion, and partly because of the challenge by the State. Talesmen were ordered to fill up the panel, and T.A. Gossett was brought in and found to be a competent juror, and was substituted in the place of said Tucker, and the jury was then sworn, to all of which appellant reserved his bill of exceptions. This grand jury, as thus organized, subsequently, on July 29, found the bill of indictment against appellant for the murder of said Jim Stafford. Said homicide was committed on June 15, 1899. This is about the shape of the case as presented in the two bills of exception on the subject, and raises sharply the question whether or not the grand jury which found this bill of indictment was a legal grand jury. A majority of the court are of opinion that it was, and I understand their view to be based on the construction of our statutes on the subject as construed in Trevinio v. State, 27 Texas Criminal Appeals, 372. I have read that decision carefully, and, in my opinion, it is not a legitimate construction of the statutes; and, notwithstanding my respect for the court and able judge who rendered that opinion, I believe it is an interpretation of the statute unauthorized by law. The effect of that decision is to constitute a new grand jury, and to reimpanel and reswear such new grand jury. However, I do not propose to analyze or discuss what I consider fallacies in said opinion, further than is involved in my interpretation of our statutes, on the subject of the original impanelment of the grand jury for the term, and the authority to reassemble said grand jury.
The grand jury system is of very ancient origin, — almost coeval with the birth of the common law itself. It was brought by our ancesters across the water from England, and in the early history of our government entered into and became a part of our criminal jurisprudence. However, its origin or antiquity has nothing particularly to do with this question. As far as we are concerned, it is regulated by our Constitution and by our statutes. Our Bill of Rights (section 10) provides that "no person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary," etc. Section 13, article 5, provides that the grand juries shall be composed of twelve men, but nine members of a grand jury shall be a quorum to transact business and present bills. Our statutes on the subject of grand juries, so far as need be noted, are embraced in the Code of Criminal Procedure, from article 372 to article 411, inclusive. These relate to the qualifications of grand jurors; how they shall be drawn by jury commissioners appointed by the court; how they shall be summoned and tested as to their qualifications, impaneled, and sworn. The judge is authorized to appoint jury commissioners, who shall select grand jurors for the succeeding term of the court. It is also provided that in case there is a failure to select a jury at the preceding term, from any cause, the judge may order the sheriff to summon *Page 53 a sufficient number of persons, not less than twelve nor more than sixteen, to serve as grand jurors, and from these the panel of twelve is to be selected. Or if there is a failure on the part of any of the jurors drawn by the jury commissioners to attend, and the panel of twelve is not filled out by those who do attend, the judge is authorized to require the sheriff to summon a sufficient number to complete the panel. Among other things, it is provided in article 396 that, when twelve qualified jurors are found to be present, the court shall proceed to impanel them as a grand jury, unless a challenge is made, which may be made to the array or to any particular individual presented to serve as a grand juror. Article 397 provides that: "Any person, before the grand jury has been impaneled, may challenge the array of jurors, or any person presented as a grand juror, and 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." Then we have a definition of the array, and how that is to be challenged, which does not concern us here. Then article 401 provides for the challenge to particular jurors: "A challenge to a particular grand juror may be made orally, and for the following causes, only: (1) That he is not a qualified grand juror. (2) That he is the prosecutor upon an accusation against the person making the challenge. (3) That he is related by consanguinity or affinity to some person who has been held to bail, or who is in confinement upon a criminal accusation." When a challenge to the array or to any individual juror has been made, the court is authorized to hear proof and decide the same; and if sustained, and the number of grand jurors thus reduced below twelve, the court is authorized to order the panel filled out, or another grand jury summoned, as the case may be. It is further provided, in accordance with the Constitution, that nine members shall constitute a quorum for the purpose of transacting business and presenting bills of indictment. Article 411 reads as follows: "When a grand jury has been discharged by the court for the term, it may be reassembled by the court at any time during the term, and in case of failure of one or more of the members to reassemble, the court may complete the panel by impaneling other qualified persons in their stead, in accordance with the rules prescribed in this chapter for completing the grand jury in the first instance." I have quoted so much because I think all these statutes are pertinent, as bearing on the question at issue. It will be well to note here that the statutes speak of the grand jury for the term, and, before the enactment of said article 411, the practice, in contingencies when the grand jury had been discharged, of reassembling them, was by setting aside the order discharging them, and ordering their reassembling. Wilson v. State, 32 Tex. 112; Mitchell v. State, 43 Tex. 512 [43 Tex. 512]; Newman v. State, 43 Tex. 525. And as far back as State v. Jacobs, 6 Tex. 99, it was held that a venire facias issued to summon a new grand jury while the first is recognized as a legal grand jury, and before any steps are taken to set aside the *Page 54 first, is illegal. It will also be well to note that this court, in construing the power of the court with reference to a grand jury after it has once been impaneled and sworn for the term, has held that the court has no authority to excuse one of its members for the term, and an attempt to thus excuse a member permanently is an absolute nullity, and could not operate to destroy the autonomy of the grand jury as originally constituted. Such an attempted excuse could not discharge the juror, and the law would still consider him a member of the grand jury. Smith v. State, 19 Texas Crim. App., 444; Watts v. State, 22 Texas Crim. App., 572; Drake v. State, 25 Texas Crim. App., 293; Jackson v. State, 25 Texas Crim. App., 314. Under these authorities, I apprehend it will be conceded, if appellant had committed this homicide while said grand jury was in session, never having been discharged, and he had been arrested and brought into court, and had then craved the right to challenge the array of said grand jury or to challenge any particular grand juror, that it would not have been permitted, simply because there would have been no law authorizing this procedure, no matter how well founded his cause of challenge may have been. He could only make his challenge when the grand jury was being organized, and not afterwards, because this is his statutory right, and the statute gives him no other. If this be a sound interpretation of the law, then I ask by what authority, if the same grand jury organized at the beginning of court has been discharged and then reassembled, has the defendant the right to then challenge either the array or any particular grand juror? If he has such right, he must get it, not by statute, but by judicial legislation. The argument ab inconvenienti has no place here. The procedure carved out by our Legislature must govern us. A plain reading of the statute shows that no new grand jury is to be organized after its discharge, but the same grand jury organized at the beginning of the term is to be reassembled. They have already been tested and sworn. This, according to the definition of our statute, means the impanelment of the grand jury. Art. 399, Code Crim. Proc. And it is provided that, if all this panel of grand jurors (not the sixteen original grand jurors from which the panel was formed, but the twelve) shall reassemble, that is the grand jury. And as was said in Gay v. State, 40 Texas Criminal Reports, 242: "It is not necessary to go through the formality of testing them as to their qualifications, and reswear the members of said grand jury. All that is necessary is for the court to instruct them and send them about their business." The statute provides only one contingency in which the court can depart from this rule; that is, should one or more of the members composing the said grand jury be absent, then the court is authorized to have others summoned to fill up the panel, — that is to complete the grand jury of twelve, including those members of the original panel who are in attendance. Applying the rule expressio unius here, it would certainly suggest that this is the limitation of the authority of the court with reference to constituting *Page 55 new members of the grand jury, and would inhibit the court from pursuing any other method in the completion of said grand jury.
It is said that if one or more grand jurors are actually present, but they are sick, certainly the court would have the right to excuse them; that is, though actually present, they are constructively absent. This would be worse than Speaker Reed's construction of the rules, about which we so much complained, because he found the truth when he counted as present members who were actually present but who refused to answer the roll call. But here we have a fiction founded in a fallacy; that is, we assume that a juror actually present is constructively absent. This kind of reasoning will not do. My answer to the whole proposition is that the authority of the court is measured by the statute, and I find no authority for the court of its own motion to create a grand jury. As Judge Roberts said in Newman v. State,43 Tex. 528, that he knew of no authority, "either on principle or practice, for issuing a venire to enable the sheriff to select a new grand jury after that for the term had been discharged." This was simply tantamount to saying that the court in this regard was regulated by statute. A grand jury, under our system of jurisprudence, means something, and it must be constituted according to the rules of law prescribed for its organization; and if this is departed from so as to break the autonomy of the legal grand jury, the effect will be either to add to the number of jurors and increase the jury beyond the constitutional limit, or to substitute a legal grand juror by a person not authorized to sit or be with the grand jury. In either event it would be without authority of law. The incompetency of one grand juror is sufficient to render an indictment found by it null and void. State v. Foster, 9 Tex. 65; 10 Enc. of Pl. and Pr., 355, note 3, for authorities. And it has been repeatedly held that where an indictment is found by a grand jury composed of a greater number than twelve jurors, as required by the Constitution, it is null and void. Ex parte Reynolds, 35 Tex.Crim. Rep.; Harrell v. State, 22 Texas Crim. App., 629.
It is said, however, that the courts must go on, and any other construction than that claimed would be productive of great delays. I can not so regard it, even if this was a sound argument to be invoked in the construction of our statutes regulating grand juries. The fact is, if appellant had been brought before the grand jury when it was first organized, at the beginning of the term, he would not have been authorized to challenge the grand juror Tucker because of his relationship to the deceased, because this is not provided for by our statutes. He could only be challenged on the ground of relationship if he was related to the appellant himself. As having contributed to the fund to prosecute, he may have been considered in the light of a prosecutor, and so amenable to a challenge. But the relationship, or the fact that a juror was a prosecutor, while it might have been a ground of challenge in the original organization of the grand jury, yet it would not vitiate the indictment found by said grand jury. 10 Enc. of Pl. and *Page 56 Prac., 357, and authorities cited in note 1, p. 358. It does not occur to me that there is or was any exigency to place this forced construction on our statutes regulating grand juries. The reading of the same is plain enough, and the working of said statutes is harmonious, when taken together. Nine members constitute a quorum for the transaction of business and presentation of bills. The foreman is authorized to excuse members from day to day, which is applicable to almost every exigency liable to happen to members of grand juries. And if the grand jury could not in fact be reassembled, on some account, it would be a rare exigency in which the prisoner could not be held to bail or in custody until the succeeding term of the court. In my view, the court, in standing the grand juror Tucker aside, either of his own motion or on the challenge of the State, and impaneling in his stead Gossett, acted without authority of law. He destroyed the autonomy of the grand jury, and the body which found this bill was, in my opinion, not a legal grand jury, and its presentation of the indictment was without authority of law, and null and void.
[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]