Adame v. State

WOODLEY, Judge,

(dissenting).

The indictment was returned at the April 1954 Term of the district court of Duval County. The grand jury which returned the indictment was empaneled by Judge Broadfoot from a list of grand jurors selected by a jury commission appointed by him at the April Term.

Another grand jury list had been selected for the April Term by a jury commission selected by Judge Laughlin. This was at the preceding term of the court. The order appointing the jury commissioners was, however, set aside by Judge Broadfoot after he began to preside over the court at that term.

I do not understand that my brethren uphold any attack upon the grand jury which returned the indictment other than that based upon the contention that the list drawn under the order of Judge Laughlin at the previous term should have been used.

Before any grand jury was empaneled for the April Term *191the question of the validity of Judge Broadfoot’s order setting aside the order of Judge Laughlin was squarely presented to this court in Tobin et al v. Broadfoot et al, 160 Texas Cr. R. 190, 268 S.W. 2d 162.

A divided court reached the conclusion that the order of Judge Broadfoot setting aside the appointment of the jury commissioners by Judge Laughlin was not void and could not be disregarded.

By its decision in Tobin et al v. Broadfoot et al, 160 Texas. Cr. R. 190, 268 S.W. 2d 162, this court determined that the list of grand jurors selected at the prior term could not be used. This holding became in effect the law of the case and was properly followed in the empaneling of the grand jury which returned the indictment. It should be adhered to by this court and not overruled.

I respectfully enter my dissent.