In his motion for rehearing appellant renews his contention that in selecting the grand jury which *Page 231 indicted him the jury commissioners discriminated against the Mexican race. It is pointed out in the motion that G. D. Pena testified that in the City of Taft alone there lived about 100 people of the Mexican race who were property owners, and all over the age of 21 years. In connection with his testimony, it is shown that the witness named 27 men who spoke the English language. Again, our attention is directed to a list of qualified Mexican voters in San Patricio County showing that at the time of the return of the indictment there were 287 men of Mexican extraction who were qualified to vote. It is stated in the motion that the witnesses Pena and Rodriquez testified that there were 304 persons of the Mexican race who were qualified voters, were property owners and were able to read and write the English language. However, in this connection, it is stated in the motion that the witnesses only named 30 persons out of the 304 deemed by them to be qualified for grand jury service. Further, it appears that only two or three Mexicans had ever been selected for jury service in San Patricio County.
Looking to the testimony of the witness Pena, it is observed that he stated that not all of the men he had referred to as being able to read and write the English language were property owners. On cross-examination he said: "Their knowledge of speaking and reading and writing the English language is very limited." Again, he testified: "The majority of the persons that I have named would require an interpreter if it were necessary for them to come to court here and testify in a case. Some of them can speak good English but it is a fact that practically every Mexican I have heard testify in the courtroom — and I have been in the courtroom quite a bit — had to have an interpreter in order to testify. Some of them can speak good English and I really don't think they would have to have an interpreter, but I have seen cases where it is necessary. There are lots of Mexicans that speak good English and understand it that would have to have an interpreter to fully understand what was going on in court." On redirect-examination he testified: "I know that there are a good many persons of the Mexican race who are citizens of the United States, tax-payers of San Patricio County, able to read and write the English language, and qualified to serve on juries."
The witness Rodriguez testified that he knew about 25 Mexicans in San Patricio County who were tax-payers and able to read and write the English language. He further testified that in his opinion these men were capable of understanding court procedure. However, he said: "I never talked to them in the *Page 232 English language and it is just my opinion that they could understand the court."
We quote from the testimony of Mr. Hunt, sheriff of San Patricio County, as follows: "During the 15 years in which I have been sheriff of San Patricio County, I have called some United States citizens of Mexican extraction to do jury service in this court. I don't recall just how many but I know it was not very many. About two or three years ago, it seems to me that I summoned one Mexican to do jury service that served during a whole term of court, although he didn't get on any juries, but was just here. I think he was the only Mexican that I summoned for jury service at that time. I don't recall just how long prior to that time it had been since there was another Mexican summoned for jury service here in this court, but I think there was one summoned about 10 or 12 years ago, something like that. To the best of my recollection there has been only two Mexicans called for jury service during the 15 years that I have been sheriff of this county, neither of whom were selected for jury service, although it seems to me that we did have one or two that did some jury service here a good while back — a good many years ago. With the exception of about five that I named, I don't know whether or not any of the 304 names contained on this list are citizens of the United States. Very few of the Mexicans that I know in the county are able to read and write the English language that are over 21 years of age. * * * I know as a fact of my own knowledge that the majority of the Mexican population of this county are unable to speak intelligently in English and are unable to read and write the English language. I speak the Spanish language myself and I know it to be a fact that we have to have an interpreter for Mexicans in the justice court. It is a fact that practically every Mexican witness who has testified in this courtroom during the 15 years that I have been sheriff of this county has had to have an interpreter."
The jury commissioners who selected the grand jury gave testimony warranting the conclusion that they did not intentionally discriminate against the Mexican race. We quote from the testimony of one of the commissioners, as follows: "In serving as a jury commissioner and drawing grand and petit jurors I endeavored to select what in my judgment was the men best qualified to serve as jurors. I used my best judgment in selecting the names of the jurors and did not discriminate against anyone simply because of his race."
We are of opinion that the evidence warranted the conclusion *Page 233 that very few Mexicans over 21 years of age were able to read and write the English language. The trial judge heard the testimony of the sheriff, who knew the citizenship of the county. We again quote from his testimony: "Very few of the Mexicans that I know in the county are able to read and write the English language that are over 21 years of age." Among other things, it is provided by the statute that no person shall be selected to serve as a grand juror unless he is able to read and write. Article 339, C. C. P. Viewing the testimony in its entirety, we are constrained to hold that appellant has failed to discharge the burden of showing that there was purposeful discrimination against Mexicans because of their race. See Ross v. State, 7 S.W.2d 1078. Hence we are constrained to overrule appellant's contention.
Appellant also complains of the action of the court in overruling his challenge for cause to some of the prospective jurors. With reference to this matter, suffice it to say that appellant has failed to bring forward a bill of exception. Under the circumstances, the action of the trial court cannot be reviewed.
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.