
    WOOLEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1912.)
    Grand Jury (§ 7) — Selection—Jury Commissioners — Term.
    Const, art. 16, § 19, declares that the Legislature shall prescribe by law the qualifications of grand and petit jurors. Rev. St. 1895, art. 3145, provides that the district court of each county, at each term, shall appoint jury commissioners, and article 3146 declares that a person shall not act as jury commissioner more than once in the same year. Code Grim. Proc. 1911, art. 384, also declares that the district judge, at each term of the district court, shall appoint three persons to act as jury commissioners, and article 389 provides that the commissioners shall select from the citizens of the different portions of the county 16 persons to be summoned as grand jurors for the next term of court. Held that, where there were six terms of court a year in a judicial district, the judge at the November, 1911, term had no jurisdiction to direct jury commissioners for that term to draw three grand juries for the succeeding January, March, and May, 1912, terms, and an indictment found by a grand jury so drawn was invalid.
    [Ed. Note. — For other eases, see Grand Jury, Cent. Dig. §§ 2, 16, 21; Dec. Dig. § 7.1
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Silas Woolen was convicted of an offense, and be appeals.
    Reversed and dismissed.
    M. B. Parcbman and M. P. McGee, both of Marshall, for appellant. O. E. Lane, Asst. Atty. Gen., for tbe State.
    
      
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   DAVIDSON, P. J.

Appellant moved to quash tbe indictment because it was found and returned by a grand jury wbieb bad been drawn by jury commissioners wbo were appointed by tbe court at tbe November term, 1911, to draw three grand juries for three separate terms of court — that is, tbe three terms following their appointment. The grand jury which returned this bill was drawn for tbe 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 jhries 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 of each county shall, at each term thereof, appoint three persons to perform the duties of jury commissioners for said court, who shall' possess the following qualifications:” It is unnecessary to set out those qualifications. Article 3146- provides: “The same person shall not act as jury commissioner more than once in the same year.” The Revised Code of Criminal Procedure (article 384) thus reads: “The district judge shall at each term of the district court appoint three persons to perform the duties of jury commissioners, who shall possess the following qualifications,” etc. Article 389 of said Code reads as follows: “The jury commissioners shall' select from the citizens of the different portions of the county sixteen persons to be summoned as grand jurors for the next term of the district court.” The Constitution, art. 16, § 19, provides, in substance, that the Legislature shall prescribe by law the qualifications of grand and petit jurors. Nowhere in the Constitution nor in the statutes is it provided that the judiciary shall willfully or intentionally violate the acts of the Legislature, or set at naught the provisions in regard to juries, and the manner of selecting and impaneling juries. The manner of selecting grand and petit juries is left entirely to the legislative department, and article 2, § 1, of the Constitution, provides that neither of the three departments shall ever invade the province and duties of the other. This matter has been before the court in a number of cases and on various occasions. In White’s Case, supra, the court said: “The enabling statute with reference to the selection of juries by the sheriff, dep’-uties, and constable, where from any cause the jury commissioners have failed to select jurors, or even where from any cause the court has failed to appoint jury commissioners, must evidently refer to some accidental oversight or omission of this duty, and not to some intentional disregard of the statute, even though this disregard may be based on the desire of the judge to save some expense to the county, or even though he might believe his methods of selecting juries would be a better method. The right of trial by jury stands upon a higher plane than expediency, and fair trial by jury means a jury selected according to the law regulating their selection and impanelment. We therefore hold that appellant was denied, by the intentional act of the judge, of the right of trial by a legal jury.”

Wherever the Legislature has provided the method and means by which a jury may or must be selected, the judiciary is not authorized, because of some idea they may entertain of expediency or saving of cost or expense, to abrogate and set aside the plain provisions of statutory enactment. Oases have arisen and will arise where, upon some unintentional matter or oversight, or accident on the part of the court or jury commissioners, or through instrumentalities of courts, a grand or petit jury, either or both, have not been selected. In such case the court may be authorized to instruct the sheriff, as provided by statute, to summon the necessary jurors that his court may be able to try and dispose of the business before it where juries, either grand or petit, are requisite. Courts have not been in error under those circumstances in providing jurors, grand and petit, but in the instant case the judge, because he believed he had discovered a more expedient way and might save the county some cost and expense, and the statute being only directory, he set at naught the provisions of the statute, and did it intentionally and purposely. In other words, the court intentionally violated the statute because he doubted the wisdom of the Legislature, and therefore substituted his own ideas of selecting juries in derogation and open violation of the statutory method. Whether it would save cost or not, it is unnecessary to discuss or investigate. The courts are not authorized to invade the legislative department and authority because in the opinion of the court legislation was neither wise, expedient, nor too costly. By the terms of the Constitution, the Legislature provides these matters, and whether they be expedient or not, wise or not, would not justify the courts in setting aside such legislation and substituting such ideas of the court for the legislative act. Again the grand jury does not sit for six months or from one term to another. That body can only sit for one term and ceases at end of the term. We therefore hold that the court was without authority to have the juries, grand and petit, selected at the November term, 1911, for the first three terms of 1912, and, as the indictment herein was returned at the March or second term, that the grand jury was an illegal one, and for the same reason the petit jurors would be in the same category. We are of opinion, therefore, the court should have sustained the motion to quash the indictment. It was returned by a body of men who were not selected as the law requires in any manner, either by jury commissioners or by the sheriff under appointment of the court.

The judgment will be reversed and the prosecution ordered dismissed.  