
    SIMMS v. STATE.
    (No. 9602.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1925.)
    Indictment and information <&wkey;!37(2)— Attack on grand jury by motion to quash indictment permissible, in view of arbitrary disregard of statute.
    When, district judge orally directed sheriff to select grand jury, there was arbitrary disregard of Code Cr. Proe. 1925, art. 333 et seq., pertaining to the appointment of jury commissions and selection of grand jury, creating an exception to article 358, requiring challenge before jury has been impaneled, and authorizing attack on grand jury’s qualifications by motion ro quash indictment.
    Commissioners’ Decision.
    Appeal from Throckmorton County Court; John Lee Smith, Judge.
    A. H. Simms was convicted of gambling, and he appeals.
    Reversed and remanded.
    T. R. Odell, of Throckmorton, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of , Tyler, for the State.
   BERRY, J.

The offense is gambling; the punishment is a fine of $20.

Before announcement of ready, appellant filed a motion to quash the indictment; the ground of the motion, among other things, being that the grand jury that returned the indictment was not selected by a jury commission appointed prior to the term of court at which the indictment was found.

The record shows that the court heard evidence on this motion. The sheriff of Throckmorton county was called as a witness on this motion, and his testimony is in the record without contradiction, and is to the effect that, at the November term of the district court of Throckmorton county in 1924, the district judge instructed him orally to select a grand jury for the next term of the district court, and that he selected the grand jury according to these oral instructions" of the judge; that the judge did not administer any oath to him, and that he went out and selected whoever he desired as grand jurors; and that the men thus selected were impaneled as grand jurors for the April term of court, 1925. The record' discloses that the indictment in the instant case was returned by the grand jury impaneled at the April term, 1925, and charges that the offense was committed on or about the 15th of February of that year.

As above stated, the sheriff’s testimony is uncontradicted by the record, and in our opinion shows an arbitrary disregard of article 333 (O. G. 384) et seq., of the O. O. P. pertaining to the appointment of a jury commission and the selection of a grand jury thereby. Article 358 (O. C. 409) of the C. C. P. provides that before the grand jury has been impaneled any person may challenge the array or any person presented as a grand juror for certain reasons, and it further provides that in no other way shall objections to the grand jury’s qualification and legality be heard.

An exception, however, to the application of article 358, supra, is recognized when the record shows an arbitrary disregard of the statutory provisions relating to the manner of selecting grand jurors. Powell v. State, 99 Tex. Cr. R. 282, 269 S. W. 443; Woolen v. State, 68 Tex. Cr. R. 189, 150 S. W. 1165; Russell v. State, 92 Tex. Cr. R. 93, 242 S. W. 240.

We think the instant case comes under the exception noted in the authorities above cited, in that no reason or excuse is shown by the record as to why jury commissioners were not appointed by the court, and the statute pertaining thereto was not followed. It follows that, in our opinion, under the facts disclosed by this record, the trial court should have sustained the motion to quash the indictment; and, because of its failure to do so, the judgment'is reversed-and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.  