Martinez v. State, 19253.

• Decision Date: 19 January 1938
• Docket Number: No. 19253.,19253.
• Citation: 114 S.W.2d 874
• Parties: MARTINEZ v. STATE.
• Court: Texas Court of Criminal Appeals

Page 874

114 S.W.2d 874

MARTINEZ v. STATE.

No. 19253.

Court of Criminal Appeals of Texas.

January 19, 1938.

State's Rehearing Denied March 23, 1938.

Commissioners' Decision.

Appeal from District Court, Hidalgo County; Bryce Ferguson, Judge.

Ascension Martinez, alias Chon Martinez, was convicted of murder with malice, and he appeals.

Reversed and prosecution ordered dismissed.

Kennedy Smith, of Edinburg, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State:

KRUEGER, Judge.

Appellant was convicted of the offense of murder with malice and his punishment was assessed at death.

It appears from the record that appellant and his associate in crime took a man and his wife, who desired to go into Mexico, to the Rio Grande river. There they both outraged the woman, killed the man and his wife, weighted them down, and dropped them into the river.

At the very threshold of the case, we are confronted with the question of the time and manner of the selection of the grand jury which indicted appellant with the offense charged. Article 333, C.C.P., provides as follows: "The district judge shall, at each term of the district court, appoint three persons to perform the duties of jury commissioners, who shall possess the following qualifications." (A list of qualifications follow.)

Article 338, C.C.P., provides: "The jury commissioners shall select sixteen men from the citizens of the different portions of the county to be summoned as grand jurors for the next term of the court."

Article 348, C.C.P., prior to amendment by the 43d Legislature, read as follows: "If there should be a failure, from any cause to select and summon a grand jury, as herein directed, or, when none of those summoned shall attend, the district court, shall, on the first day of the organization thereof, direct a writ to be issued to the sheriff, commanding him to summon any number of persons, not less than twelve nor more than sixteen, to serve as grand jurors."

As amended by the 43d Legislature, Acts 1933, c. 27, said article 348, C.C.P., now reads as follows: "If there should be a failure from any cause to select and summon a Grand Jury, as herein directed, or, when none of those summoned shall attend, the District Court shall, on the first day or at any time thereafter at the discretion of said court, direct a writ to be issued to the Sheriff commanding him to summon a Jury Commission, selected by the court, which commission shall select not less than twelve nor more than sixteen persons, as provided by law, who shall serve as Grand Jurors."

It appears from the bill of exception that appellant had been arrested and placed in jail for several days prior to the date he made a confession—October 15th. The November term of court began during the first part of November and continued for two months. In the month of January, another term began and continued for another two months, and during this term, the court appointed a jury commission under article 348 to select a grand jury for said term of court. Appellant was indicted by said grand jury and was subsequently tried and convicted. At the time the court appointed the jury commission to select the grand jury, appellant, through his attorneys, protested against the action of the court and objected thereto. Thereafter, appellant filed his motion to quash the indictment and in his motion averred that the court had arbitrarily disregarded article 333 with reference to the appointment of a jury commission and the selection of a grand jury. In support of said averment, he placed the judge of said court upon the witness stand, who admitted that he had consistently disregarded article 333 by appointing jury commissioners under article 348, and stated that he did so with a view to saving the county the expense of a grand jury unless it became necessary to have one; that at the previous term of his court, he did not think that there would be any need for a grand jury. Just why he thought so is not disclosed by the record. The expediency or saving of cost or expense is not such cause as was contemplated by law as a just cause for resorting to the procedure prescribed by article 348. Appellant made a confession on October 15th, at which time he was in jail; in addition thereto, the officers were in possession of many facts and circumstances which pointed to his guilt. Obviously, there would be need for a grand jury at the succeeding term of court.

However, we do not wish to be understood as holding that article 333 only applies when, in the discretion of the judge, there is need for a grand jury at such succeeding term. In the case of Hunter v. State, 108 Tex.Cr.R. 142, 299 S.W. 437, this court said that the trial court could not organize a grand jury under article 348 from persons summoned by the sheriff when statutory direction as to appointment of a jury commission had been arbitrarily disregarded. It is obvious from this article that the 43d Legislature did not intend to repeal article 333, nor did it intend to substitute article 348 therefor, because it used the following language: "If there should be a failure from any cause to select and summon a Grand Jury, as herein directed, or when none of those summoned shall attend," etc.

What did the Legislature mean by the use of the language above quoted? It certainly has reference to some article of the statutes other than the one from which it is quoted. Therefore, we must look to article 333, which is the only other statute providing for the selection and summoning of a grand jury. We are constrained to construe both of said articles in such a manner as to harmonize them and not bring them into conflict with each other. The language of article 348 clearly indicates that the judge is to be governed by article 333 in the first instance in procuring a grand jury, and that article 348 might be resorted to only when, through inadvertence, oversight, or some other good cause, the jury commission was not appointed at the preceding term of court, or in case the grand jury selected by the jury commission at the preceding term failed to appear for grand jury service. This, it seems to us, is the plain mandate of the law, and in no event can a judge arbitrarily disregard article 333 and resort to article 348 in the appointment of a jury commission to select a grand jury for the term of court then in session. To so hold would legally authorize every judge in this state to disregard article 333 in the selection of a grand jury, which would be tantamount to a repeal of said article by the judicial and not the legislative branch of our government, which is contrary to article 1, section 2, of our Constitution.

The state's attorney takes the position that article 348, as amended in 1933, provides the same method of selecting a grand jury as article 333, the only difference being the time of selection; hence, an accused person cannot be injured by the selection of a grand jury under article 348 without first resorting to article 333. He further contends that the time of summoning a grand jury is merely directory and not mandatory, and in support thereof cites the case of King v. State, 90 Tex. Cr.R. 289, 234 S.W. 1107. We note, however, that in the discussion of the question in that case, this court said: "The importance of the selection of the grand jury by commissioners appointed in accord with the law, in our opinion, far transcends the importance of summoning them at a particular time. In the one case the substance of the law is that the commissioners shall be duly selected at the preceding term, while in the other it is that the list shall be preserved and cared for in accord with the statutory requirements."

It may be that the method of selecting a grand jury under article 348 is as good and as effective as if selected under article 333, but when the Legislature prescribes rules of procedure in criminal cases, we are required to follow them, regardless of what the ultimate result might be. As we have said heretofore, it is our opinion that the Legislature enacted article 348 as a rule of...