ON MOTION FOR REHEARING.
GRAVES, Judge.Appellant again insists we were in error in our holding that his bill No. 1 evidences no error wherein we held that same did not show an intentional discrimination against the negro race in the selection of the persons who served on the grand jury that indicted this appellant for this alleged crime of rape.
We again note that under the testimony and the statute there were approximately twenty-five persons of the colored race who might have been qualified to sit on a grand jury in said county, and there is no other or further showing that such colored persons met the requisites of the statute as set forth in Art. 339, C. C. P. as follows:
“No person shall be selected or serve as a grand juror who does not possess the following qualifications:
“1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror.
“2. He must be a freeholder within the State, or a householder within 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.
“6. He must not be under indictment or other legal accusation for theft or of any felony. (Id., p. 78, O. C. 289; Const., art. 16, sec. 19; Acts 1903, 1st C. S. p. 16.)”
Although there may have resided in this County of Kaufman about 11000 negroes, there were shown to be but about 5.0 who had paid their poll tax, and about one-half of these being women, not eligible to jury service,' the eligibles from *573the poll tax section alone of Art. 339, supra, fell to about 25. We do not find in the record any proof relative to Section 3 of article 339, nor of Section 4 of said article, nor of Section 5 thereof, nor do we find any proof relative to Section 6. In other words, no proof appears of the qualifications of any negro for grand jury service save that there are about 25 male negro freeholders within Kaufman County who paid their poll tax.
We do not think that a failure to find one of these upon a grand jury would evidence a discrimination against the colored race, especially in view of the testimony of the jury commissioners who selected the grand jury list, under the instructions of the court, and the law governing such matters.
It is insisted also that among these negro tax payers and freeholders would be found the names of negro doctors or physicians, as well as negro school teachers, but it is also observed that all doctors and physicians under our statute are exempt from jury duty.
That some one committed a crime in Kaufman County that would shock the conscience of any right minded citizen can not be denied. It is also patent that the peace officers, with full knowledge of what the probable effect of such a crime would have on any community, took all reasonable precautions to protect the person charged with such crime, and were present at all times for the purpose of guaranteeing to this unfortunate prisoner his full rights under the law of a public trial in the courts of the land. The careful district judge did all in his power to see that a fair trial was had, and brought to bear all the machinery of the law in order to protect appellant’s rights. Appellant was placed in close proximity to the alleged crime by disinterested witnesses at about the time of its commission,- and was positively identified by the victim, the mother of four children, who testified not only to her ravishment but also to the fact that her despoiler had twice stabbed her in the throat with a knife, and on appellant’s knife there was afterwards found human blood.
Appellant offered an alibi, which was contradicted by members of his own race, and his eventual confusion in his testimony evidently went far to cause a reasonable mind to disbelieve his story.
The further matters herein complained of have been treated in our original opinion correctly, so we think, and we will not further discuss them.
*574We think the trial accorded appellant was a fair one and that which he was entitled to under the law, and we see no other alternative than to overrule this motion, which is accordingly done.