On State’s Motion for Rehearing
GRAVES, Judge.In our original opinion herein, this court, as well as many other judges throughout this state, had labored under the impres*129sion that the cases cited in our original opinion had held in effect that the intentional exclusion of negroes upon a grand jury venire would offend against what the Supreme Court of the United States had decided the Federal Constitution meant by “due process of law” as set forth in its Fourteenth Amendment thereto, which reads in part as follows: “ * * * nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
It is here worthy of comment that this article nowhere mentions the words “color or race”, but such phrase is found in the Fifteenth Amendment wherein the State is prohibited from denying or abridging the right to vote on account of race, color, or previous condition of servitude.
The case of Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567, is not perfectly clear as to its holding. However, the Constitution of Delaware did provide at such time that jurors in all courts should be composed of white men. Justice Field, with peculiar foresightedness, did foresee that eventually the problem would arise that a Caucasian or Mongolian might, under such attempted denial of his right to sit as a juror, offer the demand that he be presented before a jury composed entirely of his own race, this latter idea being one towards which the decisions of this-court were thought by so many to be finally progressing. It must be remembered that the element in the Delaware Constitution limiting the jurors to the white race had not been repealed at the time of the decision in the case of Neal v. State of Delaware, supra. While same was decisive of the question of the removal of Nea-1 to the Federal Court, its decision was only persuasive relative to the line of cases later decided and here referred to.
In Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074, we first find the court using the general proposition that the continued exclusion of negroes from juries is in itself alone evidence of intentional discrimination against them, regardless of the contra testimony of the person preparing the lists of prospective jurors to be submitted to the jury commissioners. We thus find present grounds at least for a wide belief among the legal fraternity that such a failure to present possible negro jurors is of itself satisfactory proof to the Supreme Court of intended exclusion and therefore lack of due process of law.
In Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757, it was provided by law that after ascertainment of a certain amount of names, there should be drawn 300 names as prospective jurors and out of such names the court should select 20 citizens out of 50 names supplied possessing the qualifications of grand jurors and out of such 20 names the court should select the 12 who should constitute the grand jury. The remaining members of the venire were to constitute the petit jury. It was admitted by the trial court.that the list of the jurors called as a petit jury bore evidence of a discrimination against Pierre, and he quashed such portion thereof and ordered another jury to be drawn, but failed to quash the grand jury venire, they being the one finding the indictment. Evidently the trial court gave credence to the statute relative to the qualifications demanded thereunder for grand jurors. It was shown by the proof that for about 60 years no negro was drawn and but one had served in any capacity as a-juror, and that the population of such parish was about equally divided between the white and colored races. This was- held to be a denial of due- process of law.
We then come to the case of Smith v. State of Texas, 140 Tex.Cr.R. 565, 136 S.W.2d 842, 147 S.W.2d 1118; Id., 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84, in which it was held that although the state statutes of Texas relating to the selection of grand jurors is not unfair, nevertheless, the outcome of the matter empowers the Supreme Court, as a finder of facts, to conclude that the frequent placing of a negro’s name on such grand jury list ás No. 16 in itself evidenced discrimination against the race, even though such discrimination is denied by the grand jury commissioners. Again, such court resorts to the population argument and finally practically determined for *130itself the fact that although the Texas statutory scheme is not unfair, that the execution thereof does become unfair if the commissioners fail to not only select possible negro grand jurors, -but it also determines the numerical place on the presented list of such person. Juror population cannot be determined by poll taxes issued in Texas at least. Women pay poll taxes also, but under the present law, they cannot serve on juries, and a fair estimate should equally divide the poll taxes as 'between the sexes.
Again, there is a difference in the standard required by law between grand and pet-it jurors. Our “not unfair” statute prescribes a higher standard for a grand juror. Art. 339, Vernon’s Ann.C.C.P., provides that (1) he must be a citizen and qualified to vote, thus requiring a poll tax in Texas; (2) he must be a freeholder in the state or a householder in the county; (3) he must be of sound mind and good moral character; (4) he must be able to read and write; (5) he must not have been convicted of any felony, and (6) he must not be under indictment or other legal accusation for theft or felony.
It should be seen that the number of poll tax payers is not of much value in determining the qualifications nor fitness of probable grand jurors; and the use of such would mislead one as to whether an individual would fit the standard thus set for a grand juror; a sound mind and good moral character being a fair requisite for a grand juror in Texas; acquaintanceship at least with the individual should be required, especially on the ground of good moral character, and such being not a matter of reputation but of knowledge, it becomes difficult to see how a commissioner could adhere to such an admonition unless he knew the desired person and was familiar, not only with his reputation but also with his moral character, as well as his record as a citizen.
In the case of Hill v. State of Texas, 144 Tex.Cr.R. 415, 157 S.W.2d 369; Id., 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559, it appears that the motives of the commissioners in drawing the grand juries for many years past is utilized as cogent testimony that the present commissioners were also guilty of discrimination, laying down a punitive measure because of the sins of our fathers and a decision of “like father like son”.
Under this line of decisions above mentioned, once having opened Pandora’s box, this court found itself under the settled idea that the above cases were reversed because the Supreme Court found itself of the belief that negroes had been discriminated against because of their color and race in that they were not drawn on grand juries and none were members thereof wherein indictments were found against members of their race, and such was denounced by the Supreme Court as unfair discrimination. Therefore, the judges of Texas were careful to instruct their jury commissioners not to discriminate in any manner against any person, and under a fair effort many commissioners tried to find colored persons who met the requirements of the statute as a grand juror. However, in the most recent case of Cassell v. State of Texas, 70 S.Ct. 629, 94 L.Ed. -; Id., Tex.Cr.App., 216 S.W.2d 813, we are led to believe that such interpretation of these opinions was in error. In that case reference is made to Akins v. State of Texas, 325 U.S. 398, 405, 65 S.Ct. 1276, 89 L.Ed. 1692, wherein the doctrine of a pro rata representation on such grand juries is repudiated. Nevertheless, we find such proportions used as a basis of argument relative to such discrimination, and was used in Neal v. State of Delaware, supra, and Pierre v. State of Louisiana, supra, as well as adverted to in Hill v. State of Texas, supra. With such repudiation we find the Cassell case, supra, declaring “that the Constitution requires only a fair jury selected without regard to race. Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible.” [70 S.Ct. 631.]
*131The Cassell case, supra, was reversed because it is shown that the commissioners knew but one negro whom they thought measured up to the statutory qualifications and he could not serve. In other words, that cause was reversed because the commissioners did not hunt for and find ne-groes who were of sound mind and good moral character, etc. This fair test cannot be made by assuming that such virtues exist. They cannot be assumed because of population, that is, that some citizens out of many are bound to possess such qualities. Such can only be ascertained by acquaintanceship, and under the testimony of the commissioners in this (•Cassell) case, they knew of but one and he refused to serve. While others might have possessed a good reputation as given him by his neighbors, his character was another matter. Although the record therein does not disclose a purposeful and designed exclusion in such case, it is held, 70 S.Ct. page 634, 94 L.Ed. page -, that it indicates that the commissioners attempted to do their duty, but that they misconstrued what was their duty and thought under Hill v. State of Texas, supra, that one negro on the grand jury would satisfy the requirement of such decision. We quote from the Cassell case, 70 S.Ct. page 635, 94 L.Ed. page -, as follows:
“This is of course a misconception. The prohibition of the Constitution against discrimination because of color does not require in and of itself the presence of a Negro on a jury. But neither is it satisfied by Negro representation arbitrarily limited to one. It is not a question of presence on a grand jury nor absence from it. The basis of selection cannot consciously take color into account. Such is the command of the Constitution. Once that restriction upon the State’s freedom in devising and administering its jury system is observed, the States are masters in their own household. If it is observed, they cannot be charged with discrimination because of color, no matter what the composition of a grand jury may turn out to be.”
In other words, it seems that if negroes are not on the grand jury, it does not necessarily show discrimination, and if they are not on the grand jury, such -is not discrimination, but a failure to inquire and “learn whether there were persons among the negroes they did not know who were qualified and available for service” would result in discrimination.
An inquirer is led to wonder whether in the states that have no grand juries provided by statute but present their felonies by means of information, in what manner they are to be governed by the cases herein discussed. Again, in Texas, county court prosecutions can be presented by complaint and information. In a search for discrimination, the county attorney is the instigator of such prosecutions. We know of none ever having held such position in our memory save white persons. All judges since the days of the Reconstruction, as well as Justices of the Peace, and also Legislators, have been white persons; and it is only left as a matter of speculation how far the deeds of our fathers shall be the basis of an assumption of misdeeds for the present generation.
After all, the grand jury’s finding is but preliminary, as is also the finding of the Justice of the Peace; and no conviction can be had by a grand jury, and it only takes the vote of nine to present an indictment.
Due process of law means only “a fair and impartial trial” upon the facts. Lisenba v. People of State of Calfornia, 314 U.S. 219-243, 62 S.Ct. 280, 86 L.Ed. 166, 167.
The ultimate end and the purpose of an indictment in the states requiring same in felony cases is the trial of the case before a petit jury. Nine men can find an indictment, but it requires twelve men and a unanimous verdict to assess a penalty. Grand juries are but preliminary to the final trial of a case.
In the present case, the motion to quash being based upon stipulations alone, we find the statement made by appellant’s diligent attorney, among other things, that no negro has served, or been selected to serve, as a grand jury commissioner in Galveston County for the past thirty years, *132and during such term only two negroes have served as grand jurors therein. Appellant bases his motion to quash and contention of discrimination on the above facts. The stipulation, however, goes further and shows that as to petit juries, the wheel system prevails in such county, as is shown by Articles 2094-2095, Revised Civil Statutes of the state, Vernon’s Ann. Civ.St. arts. 2094, 2095, that is, that the names of all taxpayers in the county are taken from the tax rolls and placed in a receptacle called the “wheel” and rotated therein,. and names are drawn therefrom by certain officers and these make up the list of petit jurors utilized in court as needed. It is agreed that such is a fair method and no complaint is lodged thereat. Again, it is agreed that no discrimination is complained of in the method of selecting such petit jurors, and that in said “wheel” there is placed the names of all negroes in such county whose names appeared on such tax rolls preceding the return of this indictment, and that such were fairly drawn therefrom. There is not now, nor has there been for many years, any discrimination relative to petit or trial juries in Galveston County. The stipulation continues:
“Of the panel drawn for the trial of the defendant eighty-two men appeared and qualified of which number, thirteen were Negroes being approximately fifteen percent (15%). Seven Negroes were examined before the jury to try defendant 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. When the jury of twelve were completed, there remained six Negroes on the unexamined panel. Defendant used twelve peremptory challenges, the State used six.
“That after the return of the indictment in the instant case, to-wit: The December, 1948 Grand Jury, two Negroes were appointed, and served; on the February, 1949, Grand Jury, one Negro was selected by the commissioners, but claimed his legal exemption because of being a practicing physician.
“That the population of Galveston County, Texas, according to the 1940 United States Census was 81,173, of which 17,712 were Negroes; that the Negro population of Galveston county, Texas, constitutes slightly more than - twenty-one (21) percent, of the total.”
It appears therefrom that it is admitted by appellant that he received a fair and impartial trial before the petit jury that tried him in such county. However, it is evident from his bills of exception that he complains because of 'the State’s exercising its peremptory challenge against four of the negroes present in the petit jury panel. Such matters surely are relegated to the judgment of the State’s attorney, and its exercise cannot be governed by judicial fiat.
If due process of law resolves itself into a fair and impartial trial, then appellant admits having received such, regardless of the color of a grand jury commissioner, or the actions thereof in the past. As said in the original opinion, we cannot bring ourselves to conceive of any grand jury that would hesitate to present for trial one who, in the perpetration of robbery, would shoot his victim as his hands were upraised, and then attempt to malign his brethren of like color by expecting them to refuse to indict him for his misdeed. The question of an indictment can be taken for granted by any twelve men who fill the statutory requirements for grand jurors. To believe otherwise would shock one’s conscience and shake faith in the civilization which a democratic people have budded through the years. The ultimate end of a trial is a fair trial. Appellant agrees that he has received such. We agree that the effect of a quashal of this indictment would be a useless thing, and as Justice Jackson said in the Cassell case, would be holding in effect “that the crime of discrimination offsets the crime of murder and that the State must start over again, if death of witnesses, loss of evidence or other conditions wrought by time do not prevent.” [70 S.Ct. 640.]
It is our judgment that this appellant has received a fair and impartial trial as he admits, and thus believing, the State’s *133motion for a rehearing: is granted, the order of reversal is set aside, and the judgment is now affirmed.