
    YBARRA v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1914.)
    1. Indictment and Information (§ 139) — Motion to Quash — Time fob Filing.
    Where an accused moves to quash the indictment on the ground that the sheriff who summoned one talesman to complete the grand' jury which found the indictment was not properly sworn, the motion comes too late, if not made until the end of the trial.
    [Ed. Note. — For other case, see Indictment and Information, Cent. Dig. § 473; Dee. Dig. § 139.]
    2. Ceiminal Law (§ 1206) — Punishment — Statutes — Homicide.
    Pen. Code 1911, art. 15, provides that When a penalty for an offense is altered by a subsequent law, the penalty of the second law shall not be inflicted for an offense committed before it took effect, and that accused shall be tried and punished under the law in force when the offense was committed unless the second law ameliorates the punishment, when accused shall be punished thereunder unless he elects to be punished under the former law. Articles 17, 18, and 19 declare that when a repealing statute substitutes a new penalty for an offense punishable by the repealed statute, the repealing statute shall not exempt from punishment for a violation of the repealed law while it was in force; that if an offense be defined by one statute and its definition subsequently changed, the modification shall not apply to offenses already committed; and that no offense committed under existing laws shall be affected by their repeal. Held, that one who committed a homicide in June preceding July 1, 1913, on which date the new murder law went into effect, must be tried under the old law, unless he expressly elects to be tried under the new.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3271-3277, 3279, 3280; Dec. Dig. § 1206.]
    3.' Statutes (§ 267) — What Law Governs.
    Although the homicide for which accused was tried was committed before the act of April 15, 1913 (Acts 33d Leg. c. 138), which changed the procedure in homicide cases by amending Code Cr. Proc. 1911, arts. 735, 737, 737a, 743, became effective, such changes in procedure must be followed where the trial was not had until after the statute went into effect.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 350-359; Dec. Dig. § 267.]
    Appeal from District Court, Hays County; Frank S. Roberts, Judge.
    Sango Ybarra was convicted of murder, and he appeals.
    Reversed and remanded.
    E. M. Cape, of San Marcos, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P, J.

Appellant was convicted of murder, and the death penalty assessed.

There are but few questions raised which are necessary to be decided. We bave carefully studied the evidence shown by the statement of facts. In view of the disposition we must make of the case on this appeal, we do not discuss the evidence. It clearly raised murder in both the first and second degrees, and was sufficient to have sustained a verdict under either.

The appellant made a motion to change the venue. This was contested by the state, and the affidavits of several persons showed that appellant was not entitled to a change of venue. As the matter is presented, the court correctly overruled appellant’s motion for a change of venue.

He also sought to quash the indictment on two grounds: First, that the commissioners, in selecting the grand jurors, unlawfully discriminated against Mexicans, and that there was no Mexican on the grand jury. The commissioners were appointed and selected the grand jurors which preferred the indictment herein against appellant some time before this offense is alleged to have been committed. They testified on appellant’s motion on this ground, and their testimony shows that no discrimination was made against Mexicans, or any other race, and the court correctly held this no ground to quash the indictment.

The other ground was that only 11 of the grand jurors who were selected by the commissioners were present and qualified as such, and that the sheriff summoned one talesman under the order of the court, who was selected to complete the jury panel. Appellant’s complaint on this ground is that the sheriff was not sworn before he summoned this talesman. No complaint whatever was made of this at the time the grand jury was impaneled. The indictment was preferred by the grand jury and filed in the court September 16, 1913. This trial occurred October 10, 1913. No complaint on this score was made by appellant until at the trial. Under the circumstances this was entirely too late for appellant to make this objection, and the court correctly overruled his motion to quash the indictment on that account.

Some question is made of the refusal of the court to permit appellant to further examine one of the jurors on his voir dire, who had already been accepted by both sides and sworn as such juror. It is unnecessary to pass upon this question, for it doubtless cannot occur on another trial.

The killing occurred on June 7, 1913, and it is so charged in the indictment. Before the trial began, and all during the trial, the appellant, as he expresses it, elected to be tried under the old murder law as it existed at the time the offense, if any, occurred. The court refused this, and instead tried him under the new murder law which went into effect July 1, 1913. The appellant not only raised the question and sought to be tried under the old law, by expressly electing to do so, before the trial began, but objected to the court’s charge in not doing so, and requested special charges correctly submitting murder in the first and second degrees under the old law, which special charges the court refused. He also so complains of the various matters in his motion for new trial. We deem it unnecessary to copy the court’s charge. It is sufficient to say that by it he submitted murder only. He did not submit, in specific terms, murder in the first degree, nor in the second degree, nor did he submit murder in such terms as to make the distinction between the two degrees. This court, in several eases tried for alleged murder committed before the new statute went into effect, but tried afterwards, has already held that unless the appellant expressly himself elects to be tried under the new law, he must be tried under the old, but, as to murder in the first degree, the new law ameliorating the penalty, as to that degree the punishment fixed by the n,ew must be charged. The statutes also expressly require this. We, therefore, deem it unnecessary to further discuss the question in this case. Articles 15, 17-19, P. C.; Hill v. State, 161 S. W. 118; Shaw v. State, 160 S. W. 103, and Cook v. State, 160 S. W. 465, both recently decided.

What we have said about being tried under the old law is meant as to the offense itself and the punishment therefor prescribed under articles 1140-1142, 1444, P. C., before amendment by the Legislature in 1913, p. 238. But although the offense was committed before the amendment of these articles of the Penal Code, yet the amended articles of the procedure (articles 735, 737, 737a, and 743), as amended by Act of April 5, 1913, p. 278, must be followed in all trials whether the offense was committed before or after the said Penal Code was amended. James v. State, 163 S. W. 61, and Wright v. State, 163 S. W. 976, both recently decided; Barnett v. State, 42 Tex. Cr. R. 306, 62 S. W. 765.

For the error above shown, the judgment is reversed, and the cause remanded.  