
    HUNTER v. STATE.
    (No. 11023.)
    Court of Criminal Appeals of Texas.
    Oct. 12, 1927.
    Rehearing Denied Nov. 16, 1927.
    1. Grand jury <&wkey;7 — Trial court cannot organize grand jury from persons summoned by sheriff, where statute as to appointment of jury commissioners has been arbitrarily disregarded (Code Cr. Proc. 1925, arts. 333-372, and art. 343).
    Trial court cannot organize grand jury under Code Cr. Proc. 1925, art. 348, from persons summoned by sheriff, when statutory direction under articles 333-372, declaring that court shall appoint jury commissioners at previous term to select persons for grand jury, has been arbitrarily disregarded.
    2. Grand jury &wkey;>19 — One under arrest or under bond, wishing.to challenge grand jury array under statute, must do so before grand jury is impaneled (Code Cr. Proc. 1925, art. 361, subds, 1,2).
    One charged with criminal offense, who is under arrest or in custody or under bond, wishing to challenge grand jury array under Code Cr. Proc. 1925, art. 361, subds. 1, 2, because those summoned were not selected by jury commissioners. or because officer who summoned them acted corruptly, must challenge before the grand jury is impaneled. ' ,
    
      3. Indictment and information t&wkey; 137(2) — Motion to quash indictment because grand jury was illegally organized in disregard of statute providing for appointing jury commissioners held proper, notwithstanding restrictive words of statute authorizing motions to quash (Code Cr. Proc. 1925, arts. 333-372, 506, and art. 348).
    Motion to set aside indictment on the ground that the grand jury was illegally organized, being summoned by sheriff under Code Cr. Proc. 1925, art. 1148, when statutory direction of articles 333-372, declaring that at previous term court should appoint jury commissioners to select grand jurors, had been arbitrarily disregarded, held proper, notwithstanding article 506, providing that motion to set aside indictment shall be based on one of grounds therein set forth, and no other; since these restrictions will not be construed so as to thwart constitutional guaranty of trial under indictment presented by legal grand jury.
    4. Constitutional law <&wkey;4l8 — Restrictions in criminal statutes will not be construed to thwart purpose of constitutional provision.
    Restrictions in criminal statutes, intended to preserve and protect individuals in their constitutional rights, will not be so construed as to thwart purpose of that enactment. '
    5. Statutes <&wkey;t67(2) — Statute authorizing organizing special term of district court is not penal statute, or necessarily part of Code of Criminal Procedure within repealing clause (Rev. St. 1925. art. 1920).
    Rev. St. 1925, art. 1920, authorizing the calling and organization of a special term of the district court, cannot be regarded as a penal statute, or necessarily a part of the Code of Criminal Procedure within repealing clause.
    6. Statutes i&wkey; 167(2) — Organizing special term of district court for criminal trial held authorized, notwithstanding authorizing statute was omitted from revision of Criminal Code (Const, art. 5, §§ 7, 8; Rev. St. 1925, art. 1920; Code Cr. Proc. 191.1, arts. 93, 94).
    In view of Const, art. -5, §§ 7, 8, giving district court original jurisdiction in criminal cases, and giving Legislature power to authorize special terms, calling and organizing, under Rev. St. 1925, art. 1920, special term of district court for criminal trial, held authorized, notwithstanding Code Cr. Proc. Í911, arts. 93, 94, containing provision similar to that in Civil Statutes, which authorized special term of district court was omitted from revised Code of Criminal Procedure 1925, since the repealing clause of the revised Code does not exclude consideration of the Civil Statutes.
    On Motion for Rehearing.
    7. Criminal law <&wkey;>l 189 — Where reversal of criminal case involves question of fact which might appear differently upon new trial, case will be remanded.
    Where facts on which appellate court bases reversal of a criminal case might appear differently on another trial, the ease will be remanded rather than dismissed.
    Appeal from District Court, Hopkins County; Grover Sellers, Judge.
    Dug Hunter was convicted of selling liquor, and he appeals.
    Reversed and remanded.
    Ramey & Davidson, of Sulphur Springs, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Selling liquor is the offense; punishment fixed at confinement in the penitentiary for a period of one year and nine months.

Appellant was indicted at the regular January term of the district court of Hopkins county in 1927. The grand jury was, under the direction of the court, summoned by the sheriff, because there had been no provision made at the previous term of the district court for the selection of grand jurors for the succeeding term by a jury commission. The indictment was returned on the 3d day of February, 1927, and on the 4th day of February the appellant was arrested under the indictment. The regular term was adjourned on the 8th day of February, and the trial took place at a special term of the district court called after the adjournment of the regular term.

Appellant made a motion to quash the indictment upon the ground that the grand jury which found the indictment was not selected by a jury commission appointed at the preceding term, and that the omission was intentional and arbitrary. The motion was overruled. The ground upon which it was overruled was that at the time the grand jury was organized and impaneled the appellant was confined in the county jail, and made no motion to quash or challenge the array of the grand jury, and was not brought into court for that purpose. The law contemplates that at each term of court the trial judge shall designate and appoint jury commissioners, and requires that they select a list of persons from whom a grand and petit jury at the succeeding term shall be organized. See chapter 1, title 7, C. C. P. 1925.

In article 348, C. C. P., it is declared that, “if there should be a failure from any cause to select and summon a grand jury, as herein directed,” a grand jury may be organized by the court from persons summoned by the sheriff under a writ issued by the court. Under the statutes controlling, as construed in many decisions of this court, the trial court is not privileged to organize a grand jury from persons summoned by the sheriff when the statutory direction declaring that at the previous term the court should appoint jury commissioners to select persons from whom the grand jury should be organized has been arbitrarily disregarded. White v. State, 45 Tex. Cr. R. 597, 78 S. W. 1066; Woolen v. State, 68 Tex. Cr. R. 189, 150 S. W. 1165, and other cases collated in Ex parte Holland, 91 Tex. Cr. R. 339, 238 S. W. 654. The statute points out the circumstances under which the organization of a grand jury may be attacked by challenge to the array. See article 361, C. C. P., subd. 1, which reads thus:

“That those summoned as grand jurors are not in fact those selected by the jury commissioners,”

—-and subdivision 2, art. 361, supra, which reads thus:

“In case of grand jurors summoned by order of the court, that the officer who summoned them had acted corruptly in summoning any one or more of them.”

The law contemplates that one who is charged with an offense, and who is under arrest, or in custody, or under bond, to avail himself or either of the irregularities mentioned in article 361, supra, must do so by a challenge to the array before the grand jury is impaneled. In a recent case it was said:

“If, under such circumstances — that is, he being under arrest or under bond charged by complaint with an offense — his right to challenge the array would be waived unless exercised by him before the grand jury was impaneled.” Gentry v. State, 105 Tex. Cr. R. 619, 290 S. W. 542, and precedents cited therein.

Prom the former announcements of this court it seems that the first ground of the challenge to the array, as set out in article 361, supra, has not been deemed applicable in instances in which no jury commissioners were appointed. Chapter 1, title 7, C. C. P. 1925. In addition to the precedents cited above, reference is made to Powell v. State, 99 Tex. Cr. R. 276, 269 S. W. 443, and cases therein cited on page 446. Prom the precedents mentioned, it appears that the arbitrary refusal of the trial judge to provide jury commissioners at the previous term to select a grand jury at the next succeeding term is a matter upon which one indicted by the grand jury summoned by the sheriff under an order of the court is privileged to attack the indictment by motion preliminary to the beginning of the trial. Such privilege is not embraced in article 506, C. C. P. 1925, naming the grounds on which a motion to set aside the indictment shall be based, but it has been regarded as a right embraced in the constitutional provision guaranteeing a trial by an impartial jury on an indictment presented by a legal grand jury. See Woolen v. State, 68 Tex. Cr. R. 189, 150 S. W. 1165; Powell v. State, supra; Davis v. State, 105 Tex. Cr. R. 359, 288 S. W. 456.

The principle that the restrictions found in the acts of the Legislature intended to preserve and protect individuals in their rights under the Constitution will not be so construed as to thwart the purpose of the enactment. Illustrations are available in the announcement of the court in the opinion written by Presiding Judge Hurt, in Powell’s Case, 17 Tex. App. 345, to the effect that the statute, according to its letter, confined the plea of former jeopardy to instances in which the prior proceedings had resulted in- a donviction or acquittal. The court held that former jeopardy would be available as a bar under certain circumstances, though the trial came to an end without a verdict. So, in Jaurez v. State, 102 Tex. Cr. R. 297, 277 S. W. 1091, the statute which is now under discussion (article 506, C. C. P.) was held not to foreclose the right of an accused to have the indictment set aside for a cause necessary to his constitutional right, though .not embraced in the statute. Following the precedents, we are constrained to declare that the indictment in the present case should have been set aside. We will add that the record makes manifest the fact that the learned judge who presided at the trial was not in office at the previous term. It seems that, upon learning that the statute requiring the appointment of jury commissioners had been purposely ignored, he took steps to avert in part the consequences by adjourning the regular term and calling a special term of court. The further step of sustaining the appellant’s motion to set aside the indictment and organizing a grand jury at the special term should have been taken.

Appellant insists that the organization of the special term of court at which he was tried was void. This claim is based upon the construction placed upon the revision of the .Civil and Criminal Codes of the state in 1925. Passing on another phase of the statutes, this court has heretofore expressed the opinion that the repealing clause accompanying the revised Code of Criminal Procedure was not subject to a construction so restrictive as to exclude the consideration of the civil statutes. See Compere v. State (Tex. Cr. App.) 295 S. W. 614. The calling and organization of a special term of court cannot be regarded as a penal statute or necessarily a part of the Code of Criminal Procedure. The Constitution and jurisdiction of the district courts are. parts of the organic law. To the Legislature is committed the duty of subdividing the state into. judicial districts and of increasing or diminishing the districts at will. It is also declared:

“The district court shall have original jurisdiction in all criminal eases of the gradé of felony.” Const, of Tex. art. 5, § 8.”

In article 5, § 7, of the Constitution, it is said:

“The Legislature shall have power by general or special laws to authorize the holding of special terms of the court or the holding of more than two terms in any county for the dispatch of business.”

In article 1920 of the Civil Statutes of 1925, the following appears:

“Whenever a district judge deems it advisable to hold a special term of the district court in any county in his district, such special term may be held; and such judge m^y convene such term at any time which may be fixed by him. Such district judge may appoint jury commissioners, who may select and draw grand and petit jurors in accordance with the law. Such jurors may be summoned to appear before such district court at such time as may be designated by the-judge thereof. In the discretion of the district judge, a grand jury need not be drawn or impaneled. No new civil cases can be brought to a special term of the district court.”

It is true that these same provisions were formerly embraced in the C. C. P. 1911, arts. 93 and 94. However, the necessity therefor is not apparent, and the omission of them in the revision of 1925 is not believed to impair their efficacy in authorizing the organization of district courts, and, when so organized, the provisions of the Constitution operate upon their jurisdiction. See Ex parte Young, 49 Tex. Cr. R. 536, 95 S. W. 98; Ex parte Martinez, 66 Tex. Cr. R. 1, 145 S. W. 959; Mayhew v. State, 69 Tex. Cr. R. 187, 155 S. W. 191; Davis v. State, 83 Tex. Cr. R. 539, 204 S. W. 652; Elliott v. State, 58 Tex. Cr. R. 200, 125 S. W. 568; Hickox v. State, 95 Tex. Cr. R. 175, 253 S. W. 823; Newton v. State, 93 Tex. Cr. R. 314, 247 S. W. 281. As applied to the present record, the judge having called a special term of court, it was within the scope of the court’s power to provide a jury. See Bennett v. State, 95 Tex. Cr. R. 422, 254 S. W. 949; Ex parte Holland, 91 Tex. Cr. R. 339, 238 S. W. 654.

The judgment is reversed, and the cause remanded.

On State’s Motion for Rehearing.

HAWKINS, J.

A motion for rehearing in behalf of the state is presented by the honorable district attorney of the Eighth judicial district, which is based largely upon what is conceived to be a conflict between our opinion in the present case and that in Gentry v. State, 105 Tex. Cr. R. 617, 290 S. W. 543. When the facts of the two cases are understood, we think there is no conflict. In Gentry’s Case a jury commission was appointed as the law directs. The point there arose as to an irregularity in the operation of the commission. The trial judge objected to four of the grand jurors whom the commission had selected, erased their names from the list, and directed the commission to select others in their stead, which was done. So the real point involved was that the grand jurors brought into court were not the ones selected by the jury commission, because the four first selected were not included in -the list, thus coming directly under subdivision 1, art. 361, C. C. P. 1925, which provides that a challenge to the array is available on the ground “that those summoned as grand jurors áre not in fact those selected by the jury commission.” The record showing that Gentry was in a position where he might have exercised such challenge to the array, it was held that his failure to do so was a waiver of his right to complain. In the present -ease no jury commissioners were appointed at all at the preceding term of court to select a grand jury, and such failure was held under the showing made in the record to have been an arbitrary and willful disregard of the plain provisions of the statute; hence a different rule is applied, as is pointed out in our original opinion.

It is suggested in the motion for rehearing that, if our views are adhered to as indicated in our former opinion, the order of the court should direct that the prosecution be dismissed under the present indictment. Whether the failure to appoint a jury commission was an arbitrary and willful disregard of the statute necessarily involved a question of fact which might appear differently upon another trial; hence we thought it improper to order a dismissal. If it be known to the prosecuting officer that the facts will be the same as appears in this record, prosecution under the present indictment may be dismissed and another indictment secured.

The state’s motion for rehearing is overruled. 
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