ON STATE’S motion for rehearing
HAWKINS, Presiding Judge(Concurring)
My views are expressed in the State’s Motion for Rehearing prepared and filed by the Honorable Raymond E. Magee, County Attorney of Galveston, Texas. I have decided to adopt it as my concurring opinion. Omitting the formal heading and the closing prayer and signature, it is as follows:
“In reversing the judgment of the trial court and ordering *177dismissal of the prosecution of appellant under the present indictment this Honorable Court felt itself enjoined to so rule by reason of the holdings of the Supreme Court of the United States in Smith vs. Texas, 85 L. Ed. 84, and Hill vs. Texas, 86 L. Ed. 1559. This is evidenced by the following quotation from the opinion:
“ ‘The facts in those two cases are so similar to those shown in the agreed statement found in the present record that no reasonable ground can be discovered why the holding of the Supreme Court of the United States in those eases would not be followed by that court in this case/
“We respectfully but most earnestly contend that the record in this case presents an agreed set of facts that clearly distinguishes it from both the Smith and Hill cases, as well as from all other cases decided by the Supreme Court on this subject including the Cassell case: That if this case is permitted to reach the Supreme Court it will present a simple and clear-cut question of law that has never been passed upon or presented to that court.
“It will permit and require the Supreme Court to declare definitely and unequivocally whether the Fourteenth Amendment to the Federal Constitution demands (in felony prosecutions against negroes) that there be no discrimination against negroes — or conduct from which such discrimination might be inferred — , in the selection of grand jurors or in the selection of grand jury commissioners, AND THAT SUCH IS THE LAW EVEN THOUGH IT BE ADMITTED THAT NO DISCRIMINATION WAS PRACTICED TO BAR NEGROES FROM THE PETIT OR TRIAL JURY WHICH TRIED AND CONVICTED NEGRO GRAND JURY.
“It will require that court to decide, in principle, whether a negro convicted by a petit jury of twelve negroes can complain that he was denied the equal protection of the laws because he was brought to trial upon an indictment presented by a grand jury composed of twelve white men: It will decide whether a negro convicted and deprived of his life, liberty or property by a petit jury of twelve negroes on an indictment voted and returned by a grand jury consisting of twelve negroes can still contend he was denied the equal protection of the laws BECAUSE NEGROES WERE DESIGNEDLY EXCLUDED *178FROM THE COMMISSION THAT SELECTED THE ALL NEGRO GRAND JURY.
“The record in this case with the co-operation of Thomas H. Dent, Esq., appellant’s attorney, who incidentally is also of the negro race, has been carefully prepared so as to put these questions squarely before the Supreme Court free from any fact issue. To the present the Supreme Court has not ruled with appellant’s contention and if the law is as so contended by appellant the people of the State of Texas and of the entire Southland are entitled to have the Supreme Court so state clearly and definitely. Such a ruling is most appropriate and necessary for the due administration of the penal laws of the State of Texas as well as the nation as a whole.
“The Defendant, Herman Lee Ross, by his attorney of record, has stipulated and agreed in effect as follows:
“(a) That in so far as the selection, drawing and summoning of petit juries are concerned there is not now and has not been for many years any discrimination practiced in Galveston County against negroes.
“(b) That for many years Galveston County has been operating under what is known as the ‘Jury Wheel’ law, which requires the names of all male persons residing in the county and whose names appear on the tax lists in the Tax Assessor’s Office, to be written on cards of uniform size and character and placed in said jury wheel. The filling of the wheel to be done annually by the Sheriff, County Clerk, District Clerk and Tax Assessor.
“(c) That the names of all negroes residing in Galveston County appearing on the tax lists on the 1st day of August preceding the return of the indictment in this case were placed in the jury wheel as required by law.
“(d) That no discrimination was practiced in the selection of the panel from which the trial jury was selected in this case and that no discrimination has been practiced in the drawing of the names of jurors from said wheel in this county for many years.
“(e) That of the panel drawn and summoned for the trial of the Defendant in the instant case 82 men appeared and qualified of which number 13 were negroes, being approximate*179ly 15% of the total. Seven negroes were reached on voir dire examination before the jury of twelve was completed; of these seven four were peremptorily challenged by the State; one was excused by the court because of sickness, and two were challenged for cause because opposed to capital punishment; that when the jury of twelve was completed there still remained six negroes on the unexamined panel; that Defendant used only twelve of his fifteen peremptory challenges and the State used six.
“ (f) That in addition to stipulating the facts as above summarized Defendant further stipulated that he makes no contention that there is now or has ever been any discrimination practiced in Galveston County against negroes serving on petit or trial juries.
“Notwithstanding these admissions and the further fact that Defendant exercised only twelve of his fifteen peremptory challenges, thus making no attempt to have any of the negroes still on the panel placed on the jury, and that he accepted each of the twelve white jurors without objection, he contends he was denied equal protection of the laws, contrary to the Fourteenth Amendment.
“But for the apparent holding in the Smith and Hill cases, to which now must be added the Cassell case, this contention would sound actually silly. And if the Supreme Court meant to so hold in those cases we must confess to an incapacity to comprehend its line of reasoning.
“Such a holding would as above suggested permit a negro tried and convicted by a jury composed entirely of members of his own race to contend he had been denied the equal protection of the laws because discrimination had been practiced either in the selection of the grand jury that indicted him or in the selection of the commissioners who in turn had selected said grand jury, even though said grand jury was likewise composed entirely of negroes.
“If this is logical reasoning and if it is the law, would not the argument, by easy transition, that absence of negroes from the bench of this Honorable Court, and for that matter from the Supreme Court of the United States, likewise constitute a denial of the equal protection of the laws. The answer that our Texas judiciary are elected by the people and the Fourteenth *180Amendment forbids only a State from depriving a person of life, liberty or property without due process of law, etc., does not satisfy. The judges of the Supreme Court are appointed just like grand jury commissioners and grand jurors. The judges of some of the States are appointed and Texas has the power to change the method by which its judges are selected. An indictment like an information or complaint is merely the formal charge by which an accused is brought to trial. It carries no presumption of guilt this Honorable Court has held it to be reversible error for a trial court to fail to so charge upon request. The Fifth Amendment to the Federal Constitution applies only to Federal courts and Texas can abolish the office of an indictment and bring offenders, even for capital offenses, to trial by information or complaint (Bollin vs Nebraska, 44 L. Ed. 382). This being true then would it not be just as logical to argue that the absence of negro police clerks, justices of the peace, assistant district and county attorneys and other clericals who have to do with passing upon the credibility of the complainant, weighing the evidence and preparing and filing the complaint or information, constitutes a denial of due process as to raise the point with respect to grand jurors and grand jury commissioners?
“The fallacy in Appellant’s contention springs from the false premise that the formation, personnel or complexion of a grand jury can result or tend to result in depriving an accused from receiving a fair and impartial trial. The Fourteenth Amendment guarantees that no person shall be deprived of life, liberty or property without due process of law and that no person shall be denied the equal protection of the laws. But grand jury commissioners and grand jurors do not perform the function to or have the right or power to pass upon the guilt of an accused and to deprive him of his life, liberty or property. This is the sole and exclusive province of the trial or petit jury whose unanimous verdict is necessary to convict of crime. Let us repeat here that Herman Lee Ross agrees he was tried and convicted by a jury selected without discrimination and that he makes no contention he was denied the equal protection of the laws in so far as his trial jury was concerned.
“To appreciate the maze of complexity and uncertainty to which the state courts are being lead by the Supreme Court in such cases as Smith, Hill and Cassell it should be remembered that the phrase ‘racial discrimination’ does not appear in the *181Constitution. That is a phrase coined by the Supreme Court. Discrimination as to nationality and religion can just as logically be termed denial of due process as racial discrimination. True, this Court said in Sanchez vs State, 181 SW (2) 87;
“ Tn the absence of a holding by the Supreme Court that nationality and race bear the same relation within the meaning of the Constitutional provisions mentioned, we shall continue to hold that the law of this State furnishes the guide for the selection of juries in this State.’
“We find no record that certiorari in the Supreme Court was sought by Sanchez. Justice Field’s dissent in Neal vs Delaware is interesting and logical reading on this phase of the question. Also Justice Murphy’s dissent in Akin vs Texas, 89 L. Ed. 1692, which was joined in by Justices Stone and Black, indicate a variance from your Honors views as expressed in the Sanchez ease. Who can say what future opinions may bring in this respect.
“The question whether racial discrimination in the selection of grand and petit jurors violated the Fourteenth Amendment first came before the Supreme Court in the year 1881 (only a few years after the adoption of that amendment) in Neal vs Delaware, 26 L. Ed. 567.
“It is a historical fact that the people of the State of Delaware while remaining in the Union, were nevertheless bitterly opposed to the adoption of the Fourteenth Amendment. The Amendment was rejected by the Legislature of Delaware on February 7th, 1867, and it was not until February 1901 that Delaware ratified said Amendment.
“As reflected in the opinion no denial was made or attempted that negroes were excluded from all jury service at the time in question. It was boldly asserted by the officials of the State of Delaware in the Neal case that all or practically all negroes were so lacking in intellect, honesty and morality as to be unfit to perform jury duty.
“The Supreme Court was dealing with open defiance to the clear spirit intent and purpose of the Fourteenth Amendment. The court was dealing with a political as well as a judicial question. The members of this court if not familiar with the opinion in the Neal case will read same, therefore we will not burden this motion with quotations therefrom. That opinion *182cannot be construed as holding that absence of negroes from grand juries and from commissions appointed to select grand jurors, standing alone, violates the Fourteenth Amendment.
“Neal vs Delaware was followed nineteen years later by Carter vs Texas, 44 L. Ed. 839 (decided April 1st, 1900).
“In the Carter case motion was made to quash the indictment and dismiss the prosecution because of discrimination against negroes in the selection of both the grand and petit juries. He charged that negroes had been excluded from all jury service in Galveston County for many years by reason alone of their color. He offered to prove his charges. The State made no denial and the court refused to permit any evidence to be offered on the motion. The case was reversed by the Supreme Court on authority of Neal vs Delaware.
“The next time the question was presented to the court was in Norris vs Alabama, 79 L. Ed. 1074 (decided April 1st, 1935). Again the motion to quash charged that negroes had for many years been excluded from all jury service in the county where the indictment was returned as well as in the county where it was brought to trial, by reason alone of their color.
“The record showed without question the charge was true. The Supreme Court went into the evidence thoroughly and not only so found but also found the record had been ‘doctored’ so as to falsely make it appear that negroes’ names appeared on the jury lists. We will burden this motion with but a short quotation from the Norris case:
“ ‘We are of the opinion that the evidence requires a different result from that reached in the State Court. We think the evidence that for a generation or longer no negro had been called for any jury service in Jackson County; that there were negroes qualified for jury service * * * but that no names of negroes were placed on the jury rolls, establishes the discrimination which the Constitution forbids.’
“Norris vs Alabama was followed by Pierre vs. Louisiana, 83 L. Ed. 757, (decided February 27th, 1939). Again the charge was made and not denied that negroes had for many years been excluded from both grand and petit jury service in the parish in question by reason alone of their color. It seems that a general panel of jurors were selected from which both the grand jury and the trial juries were drawn. Motion was made *183to quash both the grand and petit jury panel. The State made no denial of Pierre’s charges. The trial court granted the motion to quash the petit jury panel but overruled the motion to quash the grand jury panel. The Supreme Court reversed on authority of Neal vs Delaware and Norris vs Alabama.
“In the Pierre case the court came closer to the point presented in the instant case than in any other case wherein the court said that the same reasons that prompted the trial court to quash the petit jury should have prompted it to quash the grand jury panel. Such casual expression however should not be accepted as a mature and final expression on so important a matter.
“Up to this time the Supreme Court was dealing with situations showing a real and substantial discrimination against negroes for all jury service.
“Then comes Smith vs Texas, 85 L. Ed. 84 (decided November 25, 1940). The entire opinion deals with the manner of selecting grand juries in Harris County. No mention whatever is made with reference to the manner of selecting petit juries. No authorities are cited in the opinion although the foot notes refer to the Neal, Norris, Carter and Pierre cases. Justice Black simply states that the method employed in Harris County in the selection of grand juries constituted a denial of due process of law.
“The Hill case decided June 1st, 1942, less than 18 months after the Smith case likewise makes no reference to the manner of selecting petit juries but the following significant statement appears in the opinon:
“ ‘Certiorari was granted in this case on Neal vs. Delaware, 26 L. Ed. 567.’ More than sixty years ago, in Neal v. Delaware, a case substantially like the present, this court laid down the rule which we think controlling here; “the showing thus made, including as it did, the fact (so generally known that the court felt obliged to take judicial notice of it) that no colored citizen had ever been summoned as a juror in the courts of the State, —although its colored population exceeded twenty thousand in 1870, and in 1880 exceeded twenty six thousand, in a total population of less than one hundred and fifty thousand, — Presented a prima facie case of denial, by the officers charged with the selection of grand and petit jurors, of that equality of protection which has been secured by the Constitution and laws of the United States.” ’
*184“To summarize the Neal case is cited by the Supreme Court as authority for all the later cases on the subject. In the Neal, Carter, Norris and Pierre cases the record affirmatively shows negroes were barred from all jury service. In the Smith, Hill and Cassell cases the record is silent as to the method used in selecting petit juries. This case would present for the first time to the Supreme Court a record wherein it was admitted there was no discrimination in the selection of the trial or petit jury. This is a real and substantial distinction and entitles it to be presented to the Supreme Court.
“While Texas was sustained in the Akins case, 89 L. Ed. 1692, Justice Murphy’s dissenting opinion adds confusion and uncertainty to holdings in the Smith and Hill cases. And this confusion and uncertainty is increased by the decision in the Cassell case as indicated in newspaper reports. Justice Murphy frowned upon the practice of consistently putting any particular number of negroes on the grand jury whether that number be one or five. He says the record (Akins case) reflects this was done in Dallas County and ‘ “ to that extent they have ignored the ideals of the jury system.’ ”
“ ‘As pointed out by Judge Davidson in the Cassel case, 154 Tex. Cr. R. 648, 216 S.W. (2d) 813, the officials of Dallas County have sincerely and honestly endeavored to follow the mandate handed down by the Supreme Court in the Hill case but the Supreme Court’s action in the Cassell case shows they have failed to satisfy the Supreme Court.
“The time has come when the Supreme Court should be urged to re-examine its views on this subject. It may be a long time before this court again has before it a record which so clearly and indisputably presents the sole question of Constitutional law involved.
“If this court is satisfied Ross has had a fair and impartial trial but for the question of jury discrimination it should not hesitate to, and we respectfully say it is the court’s duty to withdraw its opinion reversing this case and affirm the judgment of the trial court so that the Supreme Court will be called upon to write again, and definitely, upon this important subject. A clear-cut and definite expression from the Supreme Court is most necessary and desirable to the nation as a whole in the proper enforcement of its criminal laws. This court should aid in securing such ruling.
*185“The press reports are to the effect that Justice Jackson in his dissent in the Cassell case said:
“ ‘This court has never explained how discrimination in the selection of a grand jury, illegal though it be, has prejudiced a defendant whom a trial jury, chosen without discrimination, has convicted.’
“This is exactly the argument we make and Justice Jackson’s words indicate the light is dawning. By the time this case reaches the Supreme Court very probably other members of the court will be converted to his line of reason.”
When the rule of inclusion or exclusion as announced in the Cassell case is applied to the actual organization of a grand jury in this state, it will render impotent and nugatory our statutes regulating the formation of grand juries in this state which have been approved by the Supreme Court of the United States as being not unfair and as being capable of being fairly enforced, and which, by practical application and use in this state throughout its history, have been found to be reasonable, fair, and sufficient.
I can not agree that this be done without again giving our United States Supreme Court the opportunity to re-examine the question.