In his motion for rehearing appellant insists that we were in error in the original opinion in making the following statement: "Immediately someone leaped upon her on the bed and she began to struggle with him. She then jumped off the bed, screamed, and ran to the window and attempted to leap through it." Referring to page 71 of the statement of facts, we find in the testimony of the prosecutrix the following statement: "There was a struggle and I jumped off on my right and *Page 671 screamed and ran and tried to get away and so I just saw the outline of the window and then I tried to get through the window."
Appellant reiterates his contention that the jury commission discriminated against negroes in the selection of the grand jury. We quote from the court's qualification appended to bill of exception No. 2, as follows: "The defendant filed his motion to quash the indictment for the reason that there were no negroes among the jury commission who selected the grand jury which indicted the defendant, and for the reason that there were no negroes upon the grand jury which indicted the defendant, and that there were no negroes drawn on same, and for the reason that negroes were purposely left off of the jury commission and grand jury. That after said motion was filed the state filed its answer thereto, setting up that his motion was not timely in that it had not been presented before a change of venue was had from Polk County to Montgomery County, Texas. Notwithstanding that said motion to quash the indictment had not been presented before a change of venue was had from Polk County to Montgomery County, after said motion had been filed and the state had duly filed its answer, the court asked the defendant if he had any proof to offer in support of his motion, to which inquiry no answer was given, and neither was there any proof offered in support of said motion; after which the court in all things overruled said motion to quash the indictment." It appears that proof was offered in support of the motion on the hearing of the motion for new trial. This was too late. We quote from Langrum v. State, 79 S.W.2d 850, as follows: "Appellant challenges the sufficiency of the indictment upon the ground that it was obnoxious to the Fourteenth Amendment to the Federal Constitution, in that there was race discrimination against appellant in the selection and action of the grand jury which found the indictment against him. The contention is untenable, for the reason that it was waived by the appellant. The waiver consisted in his pleading to the indictment and proceeding to trial without raising the question upon which he now relies. From the record it definitely appears that appellant made no complaint upon the ground mentioned during his trial, but after conviction he, for the first time, in his motion for new trial presented the plea to which reference is made. The controlling precedents are collated in the case of Jaurez v. State, 102 Tex.Crim. R. (see page 301), 277 S.W. 1091." The qualification appended to the bill of exception shows that before appellant *Page 672 pleaded to the indictment the court asked appellant if he had any proof to offer in support of his motion. Appellant gave no answer but proceeded to trial. Having waived his right, he was in no position to assert in his motion for new trial that race discrimination had been practiced in the selection of the grand jury.
A careful re-examination of the record in the light of appellant's motion for rehearing leaves us of opinion that the proper disposition was made of the appeal in the original opinion.
The motion for rehearing is overruled.
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.
ORDER STAYING EXECUTION.