Conviction for possessing intoxicating liquor for purposes of sale; punishment, two years in the penitentiary.
Appellant moved to quash the indictment, and complains of the refusal of the court so to do, in his bill of exceptions No. 1, which contains some thirty odd pages. Condensing as best we can its contents, it sets up that the regular judge of Bee county, Judge T. M. Cox, convened his November, 1926 term, — instructed his grand jury, — and then because engaged in a lengthy unfinished trial in another county of his district he recessed court until November 15th. On November 15th, he not being present, the bar of Bee county elected a special judge who duly qualified, and on November *Page 17 18th appointed jury commissioners to select grand and petit jurors for the next regular term of said court which would convene in April 1927, which commissioners qualified under appointment, met and returned lists supposed to contain the names of such jurors, to the district clerk, — which returns, according to appellant's statement in his motion, have never been opened or used. It further appears from the bill that on December 21st following, the regular judge returned and resumed the bench, this being during the continuance of the November Term. On that day he made an order which was carried into the minutes, reciting the appointment of said jury commission by said special judge, and the selection by them of jurors for the next succeeding term of the court, and also of the fact that said jury commission had overlooked and failed to select special venires as required by law, and had overlooked and failed to consider Mexican citizens as jurors who might be otherwise qualified, and being informed that this objection had been made in other cases involving Mexicans, and would be raised in cases of Mexicans who might be before the court thereafter, it was ordered that the grand and petit jurors returned by said jury commission be vacated and set aside and the jurors not summoned; and the court then named other jury commissioners who returned lists of grand and petit jurors for the April Term of said court, which grand jury returned the instant indictment. In this connection, in said bill of exceptions appears the statement by Judge Cox, who seems to have testified at the instance of both parties, in substance that it has always been his custom to appoint a jury commission the last week of his court because he could then know how to instruct the drawing of jurors for the next term. It further appears from said bill that the court upon his return to the bench December 21st was informed that the question of race discrimination against Mexicans would be raised in cases thereafter returned involving Mexicans, and being of opinion that such issue might be met by the appointment of a jury commission who could be properly instructed on this point, he made the order referred to setting aside the return by the commissioners appointed by the special judge, and appointing others who were by him instructed to consider, and who did consider and name as jurors, Mexicans.
We are favored by a brief filed by able counsel for appellant which contains citation of many authorities, none of which seem in point. Granting without discussion that appellant had the right in a case like this to move to quash the indictment for irregularities in the formation of the grand jury, we are of opinion that he wholly *Page 18 fails to show any discrimination against the Mexican race in the formation of the grand jury which indicted him. No proof appears in this record that the jury commission which drew this grand jury, in any particular or fashion discriminated against the Mexican race. The opposite of this appears from the testimony of Judge Cox as set out in this bill of exception. He states: "I know the jury commissioners did take into consideration the selection of Mexicans as jurors, because several of them appeared as jurors." We are cited to no authority and know of none which holds that the trial court having once appointed jury commissioners who have reported, has no further power over them or the results of their work during the same term. Certainly if the court found that such jury commissioners only partially performed the duties incumbent upon them, he could have them brought back and instructed, and this would appear to be more nearly regular than the appointment of other commissioners, but this court held in Columbo v. State, 65 Tex.Crim. Rep., that district judge had power to appoint a new commission to draw additional jurors, and we know of no rule of law opposing the correctness of such action. We do not perceive any good reason why the court below, if legally in possession of facts from which he knew that the work or returns of the jury commissioners theretofore appointed, would not stand the test of court inquiry, might not set same aside and decline to accept the list of jurors and might reconvene the same jury commission or appoint a new one.
To say that the court, — being made aware that in the report and lists of jurors on file made by the jury commission, but which had not yet been opened or used, they had discriminated against some race or character of persons, — is helpless to take any steps to remedy or avoid the consequences, is to confess weakness in our system of government and in our courts. If, — when the grand jury has been impaneled — has made its investigations — returned its indictment — the witnesses have been summoned for the trial — a petit jury has been impaneled, — then and not until then the court may act and hold null and void the acts of the grand jury because of discrimination in its formation, notwithstanding he knew it legally before the jury convened and before all this expensive machinery had been set up and in operation, — then we are indeed open to criticism. It is not shown in this bill how Judge Cox knew the jury commissioners appointed by the special judge had declined to consider or draw Mexicans on the grand jury and petit jury lists returned by them, but the order setting aside such lists so returned so recites that they had overlooked and failed to select a special venire as required by statute, *Page 19 and that the commissioners had overlooked the considering and drawing of any Mexican jurors. We may say that as far as this record shows to the contrary, we are of opinion that the act of the trial judge in promptly setting aside the return of the jury commissioners upon any information which tended to support the proposition of intentional discrimination, should be commended and not criticised. We are of opinion the bill as qualified shows no error.
We find nothing in appellant's bills of exception Nos. 4, 5, 6, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19 and 20 calling for any discussion on our part. Bill of exception No. 7 complains of evidence of two sales of intoxicating liquor by appellant. The indictment contained a number of counts, the court submitting only the one charging possession for purposes of sale. Proof of two sales reasonably near to each other would be permissible in support of such a charge. The bill of exception contains no statement as to the proximity of the two sales referred to. Bill of exception No. 8 fails to show by any statement of surrounding facts that the testimony objected to, set out therein, was not material to some issue in the case.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.