Woolen v. State

• Decision Date: 13 November 1912
• Citation: 150 S.W. 1165
• Parties: WOOLEN v. STATE.
• Court: Texas Court of Criminal Appeals

150 S.W. 1165

WOOLEN v.STATE.

Court of Criminal Appeals of Texas.

November 13, 1912.

Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.

Silas Woolen was convicted of an offense, and he appeals.Reversed and dismissed.

M. B. Parchman and M. P. McGee, both of Marshall, for appellant.C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant moved to quash the indictment because it was found and returned by a grand jury which had been drawn by jury commissioners who were appointed by the court at the November term, 1911, to draw three grand juries for three separate terms of court—that is, the three terms following their appointment.The grand jury which returned this bill was drawn for the March term, 1912, which was the second term after the appointment of the jury commissioners who drew them.Motion was also made, based upon the same ground, to set aside the venire of jurors in attendance upon the court at that time, and out of which the jury was selected that returned the verdict in this case.Harrison county by an act of the Thirty-Second Legislature was created a separate judicial district, and a district judge qualified himself as the judge of that court.The court, it seems, convened in November, and on the 11th of December the judge appointed the jury commissioners with instructions to them, and they obeyed the instructions, to select grand and petit juries for the January, March, and May terms of 1912.It seems, by the act of the Thirty-Second Legislature, the district court of Harrison county shall hold six terms a year.While Harrison county was in another judicial district, from which it was segregated by this act of the Legislature, it only held two terms a year.

The district judge, Hon. H. T. Lyttleton, testified that "heretofore there were two terms of this court each year, and jury commissioners were appointed each term to draw juries for the next term of court; since the act of the Legislature creating a separate judicial district for this county was passed, we have had six terms per year instead of two as formerly, inasmuch as the juries had always been drawn for six months' services, and as it would be more expedient and less expensive to continue that practice in this court, and as the statute governing herein is considered directory only, I decided that it would be proper to have a jury commission appointed in June and December in each year to draw the jurors for the three terms of court."The clerk of the court, Mr. Curtis, testified "that there were no jury commissioners appointed by the court at the January term, 1911, but the jury commissioners appointed at the November term, 1912, drew the three separate grand juries as follows: A grand jury for the January term, 1912, another grand jury for the March term, 1912, and a third grand jury for the May term, 1912.The order of the court appointing the jury commissioners is entered on the criminal minutes of the district court in the following language: "The court appointed Bennett Cullin, John Pope, and A. A. Hargrove as jury commissioners to draw juries for the January, March, and May terms of this honorable court, and administered to each of them the oath required by law and instructed them as to their duties as such commissioners.'"This seems to be the undisputed and unquestioned evidence in regard to the appointment of the jury commissioners and the drawing of both the grand and petit juries for the January, March, and May terms, 1912.

Appellant submits the proposition, first, that the intentional disregard by the district judge of the statutes requiring him to appoint jury commissioners to select grand jurors for each term of the court is a violation of law, and indictments found by the second grand jury summoned for the second term of court following their appointment is void.As the second proposition, he relied upon the following: The intentional disregard of the district judge of the statutes requiring him to appoint jury commissioners at each term of court to select juries for the next term of court is a violation of the right of trial by jury, as guaranteed by the Bill of Rights.In support of this he cites article 384 of the Revised Code of Criminal Procedure;article 5122, Revised Civil Statutes;White v. State, 45 Tex. Cr. R. 597, 78 S. W. 1066;Bickham v. State, 51 Tex. Cr. R. 150, 101 S. W. 210;Irvin v. State, 57 Tex. Cr. R. 331, 123 S. W. 127.The Revised Civil Statutes cited (article 5122) is article 3145 of the Revised Statutes of 1895, and reads as follows: "The district court...