Juarez v. State

• Decision Date: 25 November 1925
• Docket Number: (No. 8959.)
• Citation: 277 S.W. 1091
• Parties: JUAREZ v. STATE.
• Court: Texas Court of Criminal Appeals

277 S.W. 1091

JUAREZ v. STATE.

(No. 8959.)

Court of Criminal Appeals of Texas.

November 25, 1925.

Appeal from District Court, Bee County; T. M. Cox, Judge.

Antonio Juarez was convicted of selling intoxicating liquor, and he appeals. Reversed and remanded.

B. D. Tarlton, of Corpus Christi, for appellant.

Sid B. Malone, Dist. Atty., of Beeville, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Appellant is under conviction for selling intoxicating liquor, punishment being one year in the penitentiary.

When the case was called for trial, appellant filed a motion to set aside the indictment, claiming that the prosecution should be abated, because in the selection of the grand jury which returned the bill he had been purposely discriminated against because of his religious convictions, and had thereby been deprived of equal protection of the law guaranteed under the Fourteenth Amendment to the Constitution of the United States. The state excepted to this plea upon the ground, among others, that the plea should have been interposed by challenge to the array of grand jurors under articles 358 and 361, C. C. P. 1925 Revision (articles 409 and 412, Vernon's C. C. P.), and that the plea failing to show he had been deprived of an opportunity to challenge the array, his plea in the form of a motion to quash, or in abatement, came too late. In support of this exception, we are referred by the state's representatives to King v. State (Tex. Cr. App.) 100 S. W. 387; Carter v. State, 39 Tex. Cr. R. 345, 46 S. W. 236, 48 S. W. 508; Id., 177 U. S. 442, 20 S. Ct. 687, 44 L. Ed. 839; Staton v. State, 93 Tex. Cr. R. 356, 248 S. W. 356; Smith v. State, 97 Tex. Cr. R. 6, 260 S. W. 602; Robertson v. State, 92 Tex. Cr. R. 527, 244 S. W. 599. In none of these cases was the federal question under the Fourteenth Amendment involved except in the Carter Case, to which further reference will be made later. The subject of challenge to the array of grand jurors was also adverted to in Hickox v. State, 95 Tex. Cr. R. 173, 253 S. W. 823, and in Powell v. State, 99 Tex. Cr. R. 276, 269 S. W. 443; but in neither of them was said federal question involved. We mention all these cases because Carter's Case, supra, is cited with approval in all of them on the point of challenge to the array of grand jurors without taking note of a distinction which is apparent when the question raised is one of discrimination under the Fourteenth Amendment. The failure to draw the distinction has led to some confusion in our own decisions and may have misled the learned trial judge in the present instance.

Articles 358 and 361 of our Code of Procedure (1925 Revision), when construed together, provide that before the grand jury is impaneled any person may challenge the array of jurors, or any particular person on the panel; that the challenge to the array can be made only upon two grounds; (1) That the persons summoned as grand jurors are not those selected by the jury commissioners; (2) or if summoned by an officer that he acted corruptly in performing his duty, and that in no other way than by challenge so made shall objections to the qualifications and legality of the grand jury be heard. Articles 505, 506, 511, and 512, C. C. P. (1925 Revision), set forth the grounds for which an indictment may be set aside (Vernon's C. C. P. arts. 569, 570, 575, 576). It is apparent that our Code of Procedure does not, either by challenge to the array of grand jurors or by motion to set aside an indictment, specifically provide for raising the question of a denial to the accused of equal protection guaranteed by the Fourteenth Amendment to the federal Constitution, nor point out the time nor manner of presenting such a plea. It is certain, however, that under the decisions of the Supreme Court of the United States the right to present and have heard such a plea cannot be denied. A challenge to the array of grand jurors, or to the qualifications of any individual summoned on the panel, if supported, affects the validity of every act of the grand jury impaneled over such challenge. This cannot be true where the complaint is that accused has been discriminated against as the member of a class, by purposely denying such class representation on the grand jury. Indictments returned by such a grand jury would be perfectly valid save those which charge crime to members of the class discriminated against. Can it be said that a plea raising the federal point here involved questions either the legality of the grand jury or the qualification of any of its members? Is it not rather an attack on the validity of some particular act of the grand jury for the reason that the act done is directed against the member of a class against whom discrimination is charged in violation of the amendment in question? If it be the latter, would a challenge to the array be the proper procedure?

Reverting now to Carter v. State, 39 Tex. Cr. R. 345, 46 S. W. 236, 48 S. W. 508, in which arose the question under the Fourteenth Amendment: Upon original submission this court held, speaking through Judge Davidson, that the plea of discrimination should have been presented by challenge to the array of grand jurors, and not by motion to quash the indictment, but took no notice of the grounds upon which challenge to the array must be based. Upon motion for rehearing, it was pointed out that the grand jury had already been impaneled before Carter committed the offense. It was then held that under such circumstances the plea could be presented by motion to quash the indictment. In the opinion on rehearing Judge Davidson did take notice of the grounds supporting a challenge to the array, and points out that it did not include the grounds there urged. He says, "Where practicable, we believe the question should be raised by a motion to challenge the array of jurors," but immediately following this statement we quote his further language, italicizing the portion to which we desire to call particular attention:

"He did, after his arrest under the indictment and before his arraignment, move to quash the indictment on the ground that in the organization of the grand jury colored persons were discriminated against, in that none were selected by the jury commissioners. This was his first opportunity to test this question, and was proper practice, and timely, under the decisions of the Supreme Court of the United States, Neal v. Delaware, 103 U. S. 370 ; United States v. Gale, 109 U. S. 63 [65] 3 S. Ct. 1 . We think, under our statute, this question should have been raised in a motion to set aside the indictment or in the form of a special plea. True, this is not one of the causes stated in our Code of Criminal Procedure (articles 559, 561). It will be seen that the enumeration of causes by the Code is not exclusive of other fundamental constitutional grounds. We quote from Williams v. State, 20 Tex. App. 359, as follows: `There are two other pleas not specially mentioned or authorized in the Code, which are constitutional and inherent, to-wit, jeopardy and want of jurisdiction, and a special issue as to these may also be raised by a special plea, independently of any provisions of the statute.' This special plea is required to be verified by the affidavit of the defendant. Code Crim. Proc., art. 562. And so we take it that a fundamental question arising under the Constitution of the United States can be made by special plea outside of our statute."

It will be noted that the articles of our Code of Procedure referred to in the quotation relate to setting aside indictments, and not to those regarding challenges to the array of grand jurors. The final conclusion stated by Judge Davidson appears to be embraced in the italicized part of the quotation. That it was so understood by the court is borne out by the language in Thomas v. State, 49 Tex. Cr. R. 633, 95 S. W. 1069. We quote:

"Under our procedure his motion to quash the indictment, on the ground that he was not afforded an opportunity to challenge the array of the grand jury, is not well taken. Appellant was confined in jail at the time the grand jury was impaneled, and he should have made a request at that time to be brought into court so as to challenge the array. If he called to make such request, he cannot be heard afterwards to complain. Kemp v. State, 11 Tex. App. 174; Brown v. State, 32 Tex. Cr. R. 119, 22 S. W. 596; Barkman v. State (Tex.Cr.App.) 52 S. W. 69. But it seems that, notwithstanding his failure to challenge the array, he can still present his motion to quash the indictment, because his race was discriminated against in the formation of the grand jury which returned the bill. See Carter v. State, 39 Tex. Cr. R. 345, 46 S. W. 236, 48 S. W. 508; Id., 177 U. S. 442, 20 S. Ct. 687, 44 L. Ed. 839. Appellant's motions both to quash the indictment on account of race discrimination and to quash the special venire on the same account are in proper form, and, under the decisions of the Supreme Court of the United States, were made in due time."

See, also, Roberts v. State, 81 Tex. Cr. R. 227, 195 S. W. 189.

Thus it would seem that the court reached and announced the conclusion that although an accused might have raised the question by challenge to the array of grand jurors and had not availed himself of the opportunity, he could still resort to a special plea to set aside the indictment. McCline v. State, 64 Tex. Cr. R. 19, 141 S. W. 977, seems to have been decided without reference to Carter's Case or Thomas's Case, supra, and appears to be out of harmony with them, and, we think, should not be followed. If our Code of Procedure provided a specific method by which an accused should assert a claim that he had been deprived of equal protection of the law guaranteed him under the ...