
    MITCHELL v. STATE.
    (No. 10388.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1926.)
    1. Indictment and information &wkey;>l40(2)— That no negroes had1 served on grand jury for many years held not to warrant inference of discrimination.
    That no negroes had served on grand jury for several years prior to finding indictment against negro defendant held not to warrant inference of discrimination against Ms race in selecting grand jury which indicted him.
    2. Indictment and information &wkey;?I40(2) — Defendant, asserting discrimination in selection of grand jury, must prove it.
    Defendant, asserting that discrimination was practiced against him in selection of grand jury finding indictment, had burden of proving it.
    3. Criminal law &wkey;>lll6 — Bill, complaining of refusal to permit defendant to produce grand jury commissioners to show discrimination in selection of grand jury, held not to show error.
    Bill, complaining of refusal to permit defendant to produce grand jury commissioners, to show discrimination in selecting grand jury, held not to show error, where bill did not give names of commissioners nor what their testimony would have been if court had permitted them to be introduced.
    Appeal from District Court, Bexar County; W. W. McCrory, Judge.
    Siester Mitchell was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Bernard Ladon, of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., of Austin,, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the St áte.
   HAWKINS, J.

Conviction is for assault with intent to murder; punishment being ten years in the penitentiary.

It is not necessary to recite the evidence. It fully supports the verdict and judgment. Appellant is a negro. He sought to have the indictment set aside for alleged discrimination against his race in the selection of the grand jury which returned the indictment. In support of this contention, he proved, by lawyers connected with the district attorney’s office and by some attorneys in the general practice of law, that for many years no person of the negro race had served on the grand jury. This was the extent of the evidence produced in support of the mo-' tion. Appellant apparently seeks to have fhis court draw the inference that, merely because no negros had served on grand juries for several years, therefore, there must have been discrimination against his race in selecting the particular grand jury whch indicted him. This inference would be unwarranted. Roberts v. State, 81 Tex. Cr. R. 227, 195 S. W. 189; Pollard v. State, 58 Tex. Cr. R. 299, 125 S. W. 390. Where a party asserts that discrimination' was practiced, it devolves on him to prove it. In this instance no member of the jury commission which selected the grand jury was called as a witness, although they were known to appellant or could have been easily ascertained from the records of the court. The motion was properly overruled.

Appellant urged, as one ground for new trial, the action of the court in overruling his plea of discrimination in selecting the grand jury, and says upon hearing the-motion he “offered to produce, if permitted by the court, the grand jury commissioners that have acted in Bexar county for the past few years,” and complains because he was not allowed to do this. The bill presenting this matter does not give the names of said commissioners, nor does it inform us what their testimony would have been if the court had permitted them to be produced. Their testimony, whatever it might have been, could in no sense be classed as newly discovered. Their identity and evidence was as easily discoverable and ascertainable before the motion was presented at the inception of the trial as it was npon motion for new trial.

Other than the points discussed, no question is presented for review.

The judgment is affirmed. 
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