ON MOTION FOR REHEARING.
KRUEGER, Judge.Appellant has filed a motion for rehearing in which he seriously contends that we erred in the original disposition of this case. We have again viewed the record in the light of his motion and are convinced that all of his bills of exceptions were properly disposed of.
He vigorously asserts that we failed to discuss and dispose *251of the question of race discrimination in the selection of grand and petit jurors; that he was a negro of African descent but that no negro was selected by the jury commission as a grand juror who returned the indictment against him in this case. It is true that no mention was made thereof in the original opinion. The main reason for failure to discuss it was that the question .of race discrimination was raised for the first time in his motion for a new trial. We were of the opinion that he had waived the same.
Art. 358 C. C. P. relating to challenging the grand jury provides as follows:
“Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. 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.”
He failed to avail himself of this method of challenging the grand jury, nor did he raise the question by a motion to quash the indictment. He had the opportunity to do so but preferred to take a chance on a trial and, in case of a conviction, raise i't by a motion for a new trial. If this court should hold that the question could be raised for the first time on a motion for a new trial, then a defendant could go to trial without raising the question, take a chance of an acquittal, and in the event of conviction raise the question in a motion for a new trial, and thus obtain two trials. He cites us to the case of Eddie (Buster) Patton v. The State of Mississippi, 68 S. Ct. 184) decided by the Supreme Court of the United States on December 8, 1947, as sustaining his contention. It will be noted that in that case appellant raised the question in due time by a motion to quash the indictment. Therein lies the distinction between that case and the case at bar. It must be remembered that under the law of this State a person may waive anything except a trial before a jury in capital cases. It occurs to us that in the instant case appellant waived the right accorded him under the 14th Amendment of the Federal Constitution.
From what we have said it follows that the motion for rehearing should be overruled and it is so ordered.
Opinion approved by the Court.