Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.
When the case was called for trial appellant (a negro) moved to quash the indictment because of discrimination against the negro race. The evidence discloses that no negroes had been selected upon the grand and petit juries by commissioners or summoned by the constabulary in El Paso County, except in two or three instances, where two or three negroes had been picked up as jurymen in the County Court in civil cases. It is also shown that negroes were not summoned by the sheriff because *Page 616 they would be offensive to the white jurors. It is further disclosed that appellant was not given an opportunity to exercise his right of challenge to the grand jury that indicted him. In Carter's case, 20 Supreme Court, 687, the Supreme Court of the United States say: "When the defendant has had no opportunity to challenge the grand jury which found the indictment against him an objection to the constitution of the grand jury upon this ground may be taken either by plea in abatement or by motion to quash the indictment before pleading in bar. The motion to quash on such ground being based on allegations of fact, not appearing in the record, these allegations, if controverted by the attorney for the State, must be supported by evidence on the part of the defendant." The showing made by appellant upon these matters was not controverted by the State, yet defendant supports said motion by the evidence referred to above. For collation of authorities see Smith v. State, ante, page 220. Whatever this court or the trial courts in this State may think of the decisions of the Supreme Court of the United States in reference to the question involved, the decisions are conclusive and binding. That court is the final arbiter. In addition to this binding force, good policy would demand of the State courts, in questions of this character, to follow those decisions. It would not be evidence of either good policy or wisdom to be continually sending such cases on appeal to that court under such circumstances. If, under the decision in the Carter case, supra, and its supporting authorities, it would be a sufficient answer to race discrimination to have the prisoner brought before the grand jury for the purpose of exercising his right of challenge, it would certainly suggest itself to trial courts to have this matter attended to at the impaneling of the grand jury when it is possible. Whenever a course of procedure or rules have been determined and adjudicated by the appellate courts, it is the duty of inferior courts affected thereby to give heed to and follow such rules and procedure. It saves reversals. As long as trial courts persist in violating these decisions, it will be the duty of appellate courts to as persistently reverse. Under our judicial system, where there is a difference between the inferior and higher courts, such difference of opinion results favorably to the higher or appellate tribunal, whatever the trial courts may think in reference to the matters of difference. A recognition of this principle and proposition will result beneficially to the enforcement of law. The same questions are made with reference to the petit jury, not only as to the special venire, but as well to talesmen summoned by the sheriff. Motion was also renewed as to the twelve jurors who tried the case on the same ground. We call attention of the trial courts to the decisions of the Supreme Court of the United States in regard to this matter, and suggest that the only safe rule, where these matters arise, is to follow the decision of that tribunal. The action of the court refusing to continue the case and to change the venue will not be reviewed, as they may not arise upon another trial, but, if they do, will come in different form or under different circumstances.
The court submitted the case to the jury upon the theory that the *Page 617 killing was in the perpetration of burglary, and therefore murder in the first degree. Error is assigned. Appellant and others, soldiers at Fort Bliss, some five miles from El Paso, armed themselves with the guns belonging to the Federal army, as well as with axes, and proceeded to the city jail in El Paso, for the purpose of liberating one of their comrades who was there confined on a charge of drunkenness. A demand was made for the discharge of the prisoner by one of the parties. The demand was rather peremptory, and was sought to be enforced at the point of a presented gun. This precipitated the shooting, in which the deceased, Newton Stewart, was killed, as well as one of the negroes attacking the jail. The court's charge was given upon the theory that the violation of article 227, Penal Code, would constitute burglary. This article is as follows: "If any person shall break into any jail for the purpose of effecting the rescue or escape of a prisoner therein confined, or for the purpose of aiding in the escape of any prisoner so confined, he shall be punished by imprisonment in the penitentiary for a term of not less than two nor more than six years." The conception of the court in regard to this article is erroneous. An inspection of the definition of burglary will demonstrate this error. In order to constitute burglary, the breaking into the house must be by force, threats, or fraud, with intent to commit a felony or the crime of theft. An indictment charging burglary would not meet the requirements of article 227, nor could a case of burglary be charged in an indictment under article 227. Burglary, under the burglary statute, must be for the purpose of committing a felony or the crime of theft. Under article 227 it takes the breaking and rescue or intended rescue of the prisoner confined to make the felony. It would hardly do to charge under article 227, to constitute burglary, that accused did by force, threats, and fraud enter a house then and there occupied by the owner for the purpose of breaking into said house to effect the escape of some named prisoner therein. This would be a peculiar way of charging burglary. It is not burglary to break into a jail and release prisoners. These acts are made a distinct offense by the statute, and have none of the elements of burglary included, except the breaking into the house. This charge of the court was erroneous and submitted the case upon a false theory. Under the State's contention and evidence defendant and his confederates entered into a conspiracy to liberate their comrade from his confinement in the city jail. This was a conspiracy under our statute, because it was entered into for the purpose of committing a felony under article 227, not for the purpose of committing a burglary. For the errors discussed the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 618