
    David Butcher v. The State.
    No. 23947.
    Delivered March 3, 1948.
    
      H. M. Hood, of Borger, for appellant.
    
      Ernest S. Goens, State’s Attorney, of Austin, for the State.
   GRAVES, Judge.

Appellant received a sentence of ten years in the penitentiary under a conviction for murder with malice.

There is no statement of facts in the record.

Only one matter is presented for our consideration, and that is based upon a stipulation agreed to by the District Attorney, as well as by appellant, upon a motion to quash the indictment herein, alleging discrimination against appellant in that he was indicted by a grand jury composed wholly of persons of the white race, he being a member of the colored race and that the members of that race have been systematically and arbitrarily excluded from grand jury service in said Hutchinson County for many years. There is no supporting proof in the record relative to such matters set up in the motion to quash save a stipulation found therein and agreed to by the District Attorney as follows:

“It is agreed by and on behalf of the State’s Attorney that since he has been serving as district attorney for the 84th Judicial District Court of Hutchinson County, Texas, since some time in 1930, that he has been in personal attendance with and upon every Grand Jury in Hutchinson County since that time and that there has never been a member of the colored race to serve on grand juries during that time; that he has also prosecuted or assisted in the prosecution of every felony indictment since said date and that no member of the colored race has ever at any time served as a member of any jury for the trial of any criminal case in the District Court of Hutchinson County, Texas, since said date; that further it is agreed that there is now in Hutchinson County, Texas, a colored population of from five to six hundred persons and that said colored population has more or less existed as such in Hutchinson County, Texas, since the year of 1930.”

In his order overruling the motion to quash the indictment, the careful trial court said:

“There was nothing presented to the Court, in connection with said motion, to reflect what number, if any, of the colored race in Hutchinson County, were eligible as provided by statute, to serve on the Grand Jury which returned the Bill of Indictment for which the defendant was on trial.”

We think the trial court was correct in overruling this mo-' tion on the ground set forth in the above qualification. See Art. 339, C. C. P.

There being no further question found in the record, the judgment will be affirmed.  