Hunter v. State

• Decision Date: 12 October 1927
• Docket Number: (No. 11023.)
• Citation: 299 S.W. 437
• Parties: HUNTER v. STATE.
• Court: Texas Court of Criminal Appeals

299 S.W. 437

HUNTER v. STATE.

(No. 11023.)

Court of Criminal Appeals of Texas.

October 12, 1927.

Rehearing Denied November 16, 1927.

Appeal from District Court, Hopkins County; Grover Sellers, Judge.

Dug Hunter was convicted of selling liquor, and he appeals. Reversed and remanded.

Ramey & Davidson, of Sulphur Springs, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

Selling liquor is the offense; punishment fixed at confinement in the penitentiary for a period of one year and nine months.

Appellant was indicted at the regular January term of the district court of Hopkins county in 1927. The grand jury was, under the direction of the court, summoned by the sheriff, because there had been no provision made at the previous term of the district court for the selection of grand jurors for the succeeding term by a jury commission. The indictment was returned on the 3d day of February, 1927, and on the 4th day of February the appellant was arrested under the indictment. The regular term was adjourned on the 8th day of February, and the trial took place at a special term of the district court called after the adjournment of the regular term.

Appellant made a motion to quash the indictment upon the ground that the grand jury which found the indictment was not selected by a jury commission appointed at the preceding term, and that the omission was intentional and arbitrary. The motion was overruled. The ground upon which it was overruled was that at the time the grand jury was organized and impaneled the appellant was confined in the county jail, and made no motion to quash or challenge the array of the grand jury, and was not brought into court for that purpose. The law contemplates that at each term of court the trial judge shall designate and appoint jury commissioners, and requires that they select a list of persons from whom a grand and petit jury at the succeeding term shall be organized. See chapter 1, title 7, C. C. P. 1925.

In article 348, C. C. P., it is declared that, "if there should be a failure from any cause to select and summon a grand jury, as herein directed," a grand jury may be organized by the court from persons summoned by the sheriff under a writ issued by the court. Under the statutes controlling, as construed in many decisions of this court, the trial court is not privileged to organize a grand jury from persons summoned by the sheriff when the statutory direction declaring that at the previous term the court should appoint jury commissioners to select persons from whom the grand jury should be organized has been arbitrarily disregarded. White v. State, 45 Tex. Cr. R. 597, 78 S. W. 1066; Woolen v. State, 68 Tex. Cr. R. 189, 150 S. W. 1165, and other cases collated in Ex parte Holland, 91 Tex. Cr. R. 339, 238 S. W. 654. The statute points out the circumstances under which the organization of a grand jury may be attacked by challenge to the array. See article 361, C. C. P., subd. 1, which reads thus:

"That those summoned as grand jurors are not in fact those selected by the jury commissioners,"

— and subdivision 2, art. 361, supra, which reads thus:

"In case of grand jurors summoned by order of the court, that the officer who summoned them had acted corruptly in summoning any one or more of them."

The law contemplates that one who is charged with an offense, and who is under arrest, or in custody, or under bond, to avail himself or either of the irregularities mentioned in article 361, supra, must do so by a challenge to the array before the grand jury is impaneled. In a recent case it was said:

"If, under such circumstances — that is, he being under arrest or under bond charged by complaint with an offense — his right to challenge the array would be waived unless exercised by him before the grand jury was impaneled." Gentry v. State, 105 Tex. Cr. R. 619, 290 S. W. 542, and precedents cited therein.

From the former announcements of this court it seems that the first ground of the challenge to the array, as set out in article 361, supra, has not been deemed applicable in instances in which no jury commissioners were appointed. Chapter 1, title 7, C. C. P. 1925. In addition to the precedents cited above, reference is made to Powell v. State, 99 Tex. Cr. R. 276, 269 S. W. 443, and cases therein cited on page 446. From the precedents mentioned, it appears that the arbitrary refusal of the trial judge to provide jury commissioners at the previous term to select a grand jury at the next succeeding term is a matter upon which one indicted by the grand jury summoned by the sheriff under an order of the court is privileged to attack the indictment by motion preliminary to the beginning of the trial. Such privilege is not embraced in article 506, C. C. P. 1925, naming the grounds on which a motion to set aside the indictment shall be based, but it has been regarded as a right embraced in the constitutional provision guaranteeing a trial by an impartial jury on an indictment presented by a legal grand jury. See Woolen v. State, 68 Tex. Cr. R. 189, 150 S. W. 1165; Powell v. State, supra; Davis v. State, 105 Tex. Cr. R. 359, 288 S. W. 456.

The principle that the restrictions found in the acts of the Legislature intended to preserve and protect individuals in their rights under the Constitution will not be so construed as to thwart the purpose of the enactment. Illustrations are available in the announcement of the court in the opinion written by Presiding Judge Hurt, in Powell's Case, 17 Tex. App. 345, to the effect that the statute, according to its letter, confined the plea of former jeopardy to instances in which the prior proceedings had resulted in a conviction or acquittal. The court held that former jeopardy would be available as a bar under certain circumstances, though the trial came to an end without a verdict. So, in Jaurez v. State, 102 Tex. Cr. R. 297, 277 S. W. 1091, the statute which is now under discussion (article 506, C. C. P.) was held not to foreclose the right of an accused to have the indictment set aside for a cause necessary to his constitutional right, though not embraced in the statute. Following the precedents, we are constrained to declare that the indictment in the present case should have been set aside. We will add that the record makes manifest the fact that the learned judge who presided at the trial was not in office at the previous term. It seems that, upon learning that the statute requiring the appointment of jury commissioners had been purposely ignored, he took steps to avert in part the consequences by adjourning the regular term and calling a special term of court. The further step of sustaining the appellant's motion to set aside the indictment and organizing a grand jury at the special term should have been taken.

Appellant insists that the organization of the special term of court at which he was tried was void. This claim is based upon the construction placed upon the revision of the Civil and Criminal Codes of the state in 1925. Passing on another phase of the statutes, this court has...