ON MOTION FOR REHEARING.
LATTIMORE, Judge.The , jury panel drawn from the jury wheel was quashed upon appellant’s motion on the ground that there was-no city in Eastland county, as shown by the census of 1930, which contained a population of 20,000 people. The sheriff, upon order of the court, summoned a jury. Appellant moved to quash this second panel for the reason that the sheriff summoned the same men who were on the original panel, they having been asked by the court to remain after the-first panel had been quashed. This does not appear to us tantamount to an order from the court to the sheriff to summon these jurors. Nor do we think the action of the court in having the jury drawn from the wheel originally an arbitrary or wilful disregard, of the law authorizing the appointment of jury commissioners in counties having no city with a population of 20,000. In Butler v. State, 108 Texas Crim. Rep., 177, 299 S. W., 420, referred to in our original opinion, we said:
“To entitle the appellant to quash the panel, it was necessary that he-*248introduce 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.”
There is nothing in this record suggesting that at the July term of the trial court at which, if at all, jury commissioners should have been appointed to draw juries for the succeeding September term thereof (at which term appellant was tried) the trial court knew personally that a final report of the Federal Census Director had been filed at Washington, D. C., in which it appeared that Eastland county, Texas, had no city therein of 20,000 population. It was not shown that the court below had actual knowledge of the filing of the census report, or the result of such census. We do not think the failure of a court to follow and be governed by the official report of some officer of some department of the Federal government, filed at the seat of our National Government a few days at most before the action of the court complained of, of which he had no actual notice, could be deemed arbitrary or wilful.
A thing is wilful, as defined by our courts, when it is “With evil intent or legal malice.” Thomas v. State, 14 Texas App., 204; Henderson v. State, 53 Texas Crim. Rep., 533. Arbitrary, according to Webster’s International Dictionary, is “Despotic; bound by no law; harsh and unforbearing; tyrannical.” As said in 131 Ga., 166, Central Georgia Ry. v. Mote: “Arbitrary is fixed or done capriciously, or at pleasure; without adequate determining principle; non-rational; not done according to reason.”
The failure of the, trial court to appoint jury commissioners not having been wilful or arbitrary, there was no wrong in his order directing the sheriff to summon jurors to fill the panel from which jurors were obtained that tried appellant.
The evidence in this case showing without dispute that the car driven by appellant was also occupied by a woman bearing his name, and shown by evidence to have the same residence address as appellant, — in which car was the whisky charged as being illegally possessd by appellant,' — we perceive no possible injury to appellant from the fact that in his charge the court told the jury that all persons who acted together in the commission of a crime were principals. He had just before in the charge told the jury that if they believed beyond a reasonable doubt that appellant, either alone or acting with another, had the actual care, control and management of the whisky in question, etc.
Whether the title to the car here involved was in appellant, D. C. Day, or in the woman mentioned Madalyn Day, would seem under the facts in this case one of immateriality. Without dispute appellant sat iridie driver’s seat and drove the car on the occasion in question. Proof that the car had been theretofore sold to Madalyn Day, and the mort*249gage and notes given by her, would appear to shed no light on the question of who possessed the whisky in the car.
We think the special charges set out in bills of exception 5 and 6 were unnecessary in view of what the court told the jury in the main charge, — and that there was no testimony calling for the charge set out in bill of exception No. 7.
In the original opinion herein possibly by stenographic error, or at most by inadvertence, there was a mis-statement as to the quantity of whisky in the car. We said it had forty-two gallons when we should have said it had forty-two half-gallons. The amount of liquor illegally possessed does not affect the penalty. The facts were for the jury.
The motion for rehearing will be overruled.
Overruled.