Ex Parte Clemming

• Decision Date: 16 November 1921
• Docket Number: (No. 6650.)
• Citation: 234 S.W. 667
• Parties: Ex parte CLEMMING et al.
• Court: Texas Court of Criminal Appeals

234 S.W. 667

Ex parte CLEMMING et al.

(No. 6650.)

Court of Criminal Appeals of Texas.

November 16, 1921.

Application for writ of habeas corpus by G. Clemming, alias D. Flemming, and another. Writ denied.

A. M. Turney, of Alpine, for applicants.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

This is an original application for writ of habeas corpus. Relators were convicted of a felony. The judgments of conviction are assailed upon the ground that the indictment was not found by a legal grand jury. Prior to March 9, 1921, Presidio and Brewster counties were in the Sixty-Third judicial district, and at that time were transferred to the Eighty-Third judicial district. See Acts 35th Leg. p. 126; Acts 37th Leg. p. 31. At the January term of the district court of Presidio county the judge of the Sixty-Third judicial district purposely refrained from appointing jury commissioners to make provision for a grand jury at the July term of court. Before the beginning of the July term and after March 9th, the district judge of the Eighty-Third judicial district called a special term of the district court of Presidio county, at which term jury commissioners were appointed and a grand jury drawn for the July term, which grand jury was organized and returned the indictments against the relators. The venue of their cases was transferred, upon motion of the trial judge, to Brewster county.

Article 384 of the Code of Criminal Procedure reads thus:

"The district judge shall, at each term of the district court, appoint three persons to perform the duties of jury commissioners."

Article 389 provides that the jury commissioners shall select persons to be summoned as grand jurors for the next term of court, and article 399 provides that if, for any cause, there is a failure to select a grand jury as directed in the articles mentioned, the district court shall, upon the first day of its organization, direct a writ to be issued to the sheriff commanding him to summon the grand jurors. The relators have not given complete data concerning the matter, but from their application and from the statutes we gather the foregoing to be a correct statement.

Relators contend that the conviction is rendered void by reason of the alleged fact that the grand jury which found the indictments was not organized according to law, and refer to the case of Woolen v. State reported in 68 Tex. Cr. R. 189, 150 S. W. 1165. In that case the district judge ignored the provisions of article 384, and instead of following the command therein given, he, at the December term, 1911, appointed jury commissioners for the terms of the court beginning in the succeeding months of January, March, and May. Woolen was indicted at the March term of the court. Based upon these facts, he made a motion to quash the indictment, which was overruled, and upon appeal from the judgment convicting him, this court held the trial court in error in refusing to sustain the motion to quash.

Relators in the instant matter made no motion to quash, prosecuted no appeal, but seek, in a collateral proceeding, to have the judgment of conviction annulled. We think the case of Woolen v. State would not be authority for such action. Not only was the decision there upon a direct attack upon the judgment of conviction, but the facts, and, in our opinion, the controlling principles, were...