
    BARTON v. STATE.
    (No. 9854.)
    (Court of Criminal Appeals of Texas.
    March 3, 1926.)
    Jury <&wkey;>33(4) — Where attention of judge be-fore adjournment was called to failure to appoint jury commissioners to select jurors for next term, overruling motion to quash array in prosecution at'next term was error (Bill of Rights, § 1.5).
    Where attention of judge was called to failure to appoint jury commissioners to select jurors for next term before adjournment, overruling motion to quash array of petit jurors on prosecution at next term was error, as intentional- disregard of statute requiring such appointment is violation of trial by jury guaranteed by Bill of Rights, § 15.
    Appeal from District Court, Bailey County; R. C. Joiner, Judge.
    Charlie Barton was convicted of possessing intoxicating liquor for purposes of sale, and he appeals.
    Reversed and remanded.
    W. W. Kirk, of Plainview, and T. H. Mc-Gregor and A. L. Love, both of Austin, for appellant.
    Sam D.' Stinson, State’s Atty., of Austin, ■and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

Conviction in district court of Bailey county for possessing intoxicating liquor for purposes of sale; punishment fixed at one year in the penitentiary.'

But one question is presented; Appellant moved to quash the array of petit jurors for the reason that same was not drawn' by a jury' commission duly appointed at the preceding term of the district court, and offered testimony in support of his motion. After hearing same, the motion was overruled, and complaint is made by proper^ bill of exceptions. It was' admitted that no jury commission was so appointed, and that the panel was composed of men .summoned by the sheriff upon order of the court.

The issue thus raised has often been before this court, and we have held consistently’ that the intentional disregard by a district judge of the statute requiring him to appoint jury commissioners at each term of court to select jurors for the next term of court is a violation of the right of trial by ■jury guaranteed by our Bill of Rights, § *15. White v. State, 78 S. W. 1066, 45 Tex. Cr. R. 597; Richardson v. State, 79 S. W. 536, 46 Tex. Cr. R. 83; Ray v. State, 79 S. W. 535, 46 Tex. Cr. R. 176; Irvin v. State, 123 S. W. 127, 57 Tex. Cr. R. 331; Woolen v. State, 150. S. W. 1165, 68 Tex. Cr. R. 189; Johnson v. State, 218 S. W. 496, 86 Tex. Cr. R. 566; Donegan v. State, 230 S. W. 166, 89 Tex. Cr. R. 193. The motive of the.court in not appointing a jury commission may be good, but, if the act of the court was intentional, the case should be reversed.

In this case the learned trial judge was sworn, and testified:

“It was a lapse of memory on my part. We had closed the minutes of the court, and we were getting ready to adjourn before my attention was called to the fact that I had failed to appoint a jury co.mmission, so I did not reopen the court. That is the reason the jury was not selected by a jury commission at this time. * * * Xes, sir; I inadvertently failed to appoint- a jury commission at the last term of the court.”
We think, the attention of the court having been called to this failure before the court adjourned, his act in thus declining to- enter an order appointing such jury commission can in no sense be classed as other than intentional. The principlesi involved have been so thoroughly discussed in the cases cited that we need not restate them.

"'For the error mentioned, the judgment is reversed and the cause remanded.  