On Appellant’s Motion for Rehearing.
DAVIDSON, Judge.Appellant insists that we erred in reaching the conclusion that the record did not reflect discrimination against members of the Negro race in the selection and impaneling of the grand jury which returned the indictment in this case. He insists that he is supported in his contention by the decisions of the Supreme Court of the United States and especially those of Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84, and Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559.
We are familiar with the holding in those cases, as the decision of this court was reversed in each case. We are perfectly willing to follow the holding in those cases and will not hesitate to do so when thought controlling. But we cannot bring ourselves to that conclusion in this case.
It is our opinion that the case of Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692, by the Supreme Court of the United States, sustains the conclusion reached in our original opinion.
In the cases involving the question of race discrimination in the organization of grand juries, we must not lose sight of the fact that the sole and only question involved is a determination as to whether race discrimination was practiced. It is not a question as to whether a member of the Negro race should or should not have been drawn and impaneled on the grand jury. Nor is it a question as to the inequality in the numbers who serve or a comparison, upon a percentage basis of population, between the white and Negro- citizens who are eligible for grand jury service. No person has the right to say that a member of his race shall be impaneled on the grand jury. Nor does proof, merely, that a member of the Negro race is not impaneled upon the grand jury establish that discrimination has been praoticed against members of that race, in the organization of the grand jury.
Such is our understanding of the holding in the Akins case, supra, not only in the majority but also in the dissenting opinion.
Dallas County, where this prosecution was maintained, has two district courts hav*819ing' jurisdiction in criminal cases. Each of these courts impanels two grand juries each year. Grand juries are impaneled in January, April, July, and October of each year.
The instant record deals with grand juries impaneled beginning with the’October term, 1942, and through the October term, 1947, at which term the instant indictment was returned. This period of time accounts for twenty-one consecutive grand juries in Dallas County. A member of the Negro race was upon each of those grand juries, save and except October, 1943, April and October of 1946, and April and October, 1947.
The record does not reflect the number of Negroes summoned for grand jury service and not impaneled on the grand jury during that period of time; nor is it shown that on those grand juries upon which no member of the Negro race actually served, no Negro was summoned for grand jury service at those terms and excused by the court.
Under the statute law of this State, sixteen men are sttmmoned for grand jury service, from which the grand jury of twelve are selected. Art. 338, C.C.P.
Proof, merely, that a member of the Negro race did not serve on the grano jury by no means establishes that no member of that race was not selected by the jury commissioners to do grand jury service.
Under the facts mentioned, we cannot bring ourselves to the conclusion that this case comes within the rule announced by the Supreme Court of the United States that the systematic exclusion of Negroes from grand jury service evidences race discrimination. Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074.
The record before us reflects that there were 5,500 Negroes in Dallas County qualified to vote. But the qualification to vote is but one of the qualifications for grand jurors. Art. 339, C.C.P. It could hardly be said, then, that this record reflects there were 5,500 Negroes in Dallas County qualified for grand jury service.
■ Viewing this record as a whole, we can arrive at but one conclusion and that is that since the decision of the Supreme Court of the United States in the Hill case, supra, the oflicers of Dallas County have earnestly endeavored to comply therewith and to do no act whereby it could be said that members of the Negro race had been discriminated against in the organization of the grand juries. Indeed, the district judges had endeavored to impress upon the jury commissioners that fact, and had done about everything a judge could do to effect that end, save and except to instruct the jury commissioners to select members of the Negro race for grand jury service, which instruction, if given, would be contrary to law.
The jury commissiqners, who drew the list of grand jurors from which the grand jury that returned the indictment against appellant, appear to have contacted members of the Negro race who they thought possessed the qualifications of grand jurors, with a view of having them serve on the grand jury, and refrained from placing them on the grand jury, at their request. While it is true the jury commissioners were not clothed with the authority to pass upon excuses of those eligible for grand jury service, yet it appears to us that this conduct on the part of the jury commissioners fortifies and supports them in their position that they did not discriminate against members of the Negro race in drawing the grand jury that returned the instant indictment.
Believing that appellant has failed to show race discrimination in the organization of the grand jury, as alleged, his motion for rehearing is overruled.
PER CURIAM.
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.