Juarez v. State, (No. 8959.)

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation277 S.W. 1091
Docket Number(No. 8959.)
Decision Date25 November 1925
277 S.W. 1091
(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.

Page 1092


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:

Page 1093

"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...

To continue reading

Request your trial
23 cases
  • Smith v. Brough, Civ. No. 16435.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • December 14, 1965
    .......         The petitioner in this habeas corpus proceeding, a Maryland State prisoner, contends that he has been deprived of his rights under the Fourteenth Amendment to the ...Juarez v. State, 102 Tex.Cr.R. 297, 277 S.W. 1091 (1925). The Maryland Court stated that it could see no ......
  • Murray v. Burns, 4468
    • United States
    • Supreme Court of Hawai'i
    • August 18, 1965
    ......Police of the City and County of Honolulu. . No. 4468. . Supreme Court of Hawai'i. . Aug. 18, 1965. . Page 310 . ... interstate extradition the scope of review in a court of the asylum state is limited to the determination of the identify of the named fugitive, ... Such was the holding [48 Haw. 527] in Juarez v. State, 102 Tex.Cr. 297, 277 S.W. 1091. That case held that a ......
  • Casarez v. State, 1114-93
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 14, 1994
    ...recognized the Equal Protection Clause prohibited discriminatory classifications based upon religion. Juarez v. State, 102 Tex.Crim. 297, 277 S.W. 1091 (Tex.Cr.App.1925). Juarez moved to quash his indictment because Catholics were prevented from serving as grand jurors because of their reli......
  • Spinkellink v. Wainwright
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 21, 1978
    ......Offender Rehabilitation, Respondent-Appellee. . No. 77-2940. . United States Court of Appeals, . Fifth Circuit. . Aug. 21, ... case involves the petition for a writ of habeas corpus by a Florida state inmate under sentence of death. On February 4, 1973, petitioner John A. ...State, 240 Md. 121, 213 A.2d 475 (1965); Juarez v. State, 102 Tex.Crim. 297, 277 S.W. 1091 (1925). There also was no ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT