
    MILLIKIN et al. v. JEFFREY, District Judge.
    (No. 11448.)
    Court of Criminal Appeals of Texas.
    Oct. 27, 1927.
    1. Jury 4&wkey;82(2) — Where failure to appoint jury commissioners is by inadvertence or for good cause, judge at succeeding term may supply jury (Rev. St. 1925, arts. 2104, 2108; Code Cr. Proc. 1925, art. 640).
    Where failure to appoint jury commissioners at previous term under Rev. St. 1925, art. 2104, was by inadvertence or for some good cause, complaint of it is not tenable, since judge at .succeeding term may supply jury under article 2108, or Code Cr. Proc. 1925, art. 640.
    2. Criminal law <&wkey;335 — One attacking failure to appoint jury commissioners has burden of proving failure was not for good cause (Rev. St. 1925, art. 2104).
    One who would take advantage of the failure of judge at previous term to appoint jury commissioners under Rev. St. 1925, art. 2104, has the burden of proving that such failure was arbitrary and not for good cause.
    3. Jury <&wkey;>70(8) — Where jury at unforeseen special term had not been selected at previous regular term, whether jurors should be selected by sheriff or jury commission held within trial judge’s discretion (Rev. St. 1925, arts. 2104, 2108; Code Cr. Proc. 1925, art. 640).
    Where necessity for calling special term could not have been foreseen, and jury commissioners for the selection of a jury were not appointed at previous regular term under Rev. St. 1925, art, 2104, .whether judge organizing the special term should have jury selected by the sheriff, or by means of jury commissioners under article 2108, or Code Cr. Proc. 1925, art. 640, held within his discretion.
    4. Jury @=»59‘(i/2) — Where unforeseen special term was called during vacation, statute requiring appointment of jury cointmissioners at previous term held inoperative (Rev. St. 1925, art. 2104).
    Where unforeseen special term was called during vacation, Rev. St. 1925,- art. 2104, requiring the appointment of a jury commission at the previous term, held not operative, and hence principles of law controlling cases where refusal to appoint jury commissioners was arbitrary were inapplicable.
    5. Jury &wkey;>59('/2) — Where judge arbitrarily refuses to appoint jury commissioners at previous term, person put on trial at succeeding term may complain.
    Where judge’s refusal to appoint jury commissioners at previous term is arbitrary, complaint of it is available to an individual charged with crime and put on trial at the succeeding term.
    6. Criminal law 4&wkey;IOI7 — There can be no appeal from lunacy trial to Court of Criminal Appeals (Code Cr. Proc. 1925, arts. 921, 922).
    Decision on lunacy trial under Code Cr. Proc. 1925, arts. 921, 922, is not appealable to the Court of Criminal Appeals, since it is not a criminal case, and the appellate jurisdiction of the Court of Criminal Appeals is confined to criminal cases.
    7.Courts &wkey;>209(2) — Court of Criminal Appeals held without jurisdiction to issue mandamus on ex parte hearing to require trial court to appoint jury commissioners in lunacy trial, after murder conviction (Const, art. 5, § 5; Acts 40th Leg. [1927] c. 38; Code Cr. Proc. 1925, arts. 921, 922; Rev. St. 1925, art. 2328).
    Under Acts 40th Leg. (1927) c. 38, passed pursuant to Const, art. 5, § 5, providing that Court of Criminal Appeals, might issue writs of mandamus to enforce its jurisdiction, and Rev. St. 1925, art. 2328, providing that no mandamus shall be granted on an ex parte hearing, Court of Criminal Appeals held not to have jurisdiction to issue writ of mandamus, on ex parte hearing, to require trial court to appoint jury commissioners in lunacy trial under Code Cr. Proc. 1925, arts. 921, 922, after conviction for murder; especially since matter involved is mere matter of trial court’s procedure.
    Application for writ of mandamus by-Avery Y. Millikin and others against Hon. M. C. Jeffrey, District Judge.
    Motion for leave to file the application refused.
    See, also, 299 S. W. 433; 299 S. W. 393; 299 S. W. 397.
    William E. Hawkins, of Breckenridge, and Clarence J. Ginn, of Houston, for relators.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   PER CURIAM.

Under the above title there is presented to this court an application for a writ of mandamus.

Pursuant to article 5, § 5 of the Constitution of Texas, the statutory law confers authority upon this court to issue writs of mandamus agreeable to the principles of law rer garding such writs “to enforce its jurisdiction.’’ Acts 40th Leg. e. 38.

In another statute it is declared:

“No mandamus shall be granted on ex parte hearing; and any peremptory mandamus granted without notice shall be abated on motion.’! R. S. 1925, art. 2328.

Under the rules of the Supreme Court of this state, promulgated by virtue of the Constitution, and in rule 15, it is declared in substance that to invoke action of the court upon applications for mandamus there shall be presented with the petition a motion to per-min’the filing of the application, which motion will be considered in consultation at once, and, “if the court should be clearly of the opinion that upon the facts stated in the petition the writ should be awarded, the motion will be granted; otherwise, it will be overruled by an order made in open court and entered upon the minutes.”

The document at present before the court will be considered in the light of the statutes and rule above mentioned as an application for leave to file a petition for mandamus.

The relief sought is that Hon. M. O. Jeffrey, judge of the Twenty-Second judicial district court of Texas, having on trial Avery V. Millikin upon the issue of insanity, be ¡required to dismiss the jury heretofore impaneled, for the trial of that issue; that he appoint jury commissioners to designate persons from whom a jury shall be selected, and that upon the report a new jury be impaneled in compliance with the terms of article 921, title 12, O. C. P. 1925; also to direct said judge to receive certain evidence which, in his judgment, is not admissible, and to require that the .judge compel the official court reporter to record the evidence adduced on the lunacy trial.

The said Avery Y. Millikin, on the trial in the district court of the Twenty-Second judicial district of Texas, sitting at Lockhart, was, at a former term, adjudged guilty of murder. Upon appeal the conviction was affirmed. See Millikin v. State (Tex. Cr. App.) 296 S. W. 547. The date of his execution was fixed for the 14th day of October, 1927. On the 13th day of that month, there was presented to this court upon his behalf an application for a writ of habeas corpus advising this court that there had been filed in the district court of the Twenty-Second judicial district of Texas, affidavits, in conformity with article 922, C. C. P. 1925, asserting that the said Millikin was insane; that-the judge of the court mentioned had declined to award him a trial on the issue of insanity upon the ground that he was in doubt as to his jurisdiction to do so. Said petition further represented that the warden of the penitentiary in charge of the said Millikin, unless otherwise directed, would proceed with his execution immediately after 12 o’clock a. m. on the 13th day of October. Upon the application advising this court of the facts mentioned above, and having in mind article 921, O. C. P. 1925, reading as follows: “If it be made known to the court at any time after conviction, or if the court has good reason to believe that a defendant is insane, a jury shall be impaneled as in criminal cases to try the question of insanity” — the writ of habeas corpus was issued, directing that the execution be deferred; that the said Millikin be brought to Caldwell county and there, by a jury impaneled in the district court of the Twenty-Second judicial district, the question of his insanity be determined, and, ancillary to the said writ of habeas corpus and as essential to make it effective and enforce the jurisdiction of this court upon whose mandate the execution of Millikin was authorized, this court directed Hon. M. C. Jeffrey, judge of the said district court, to proceed with a trial of the said Millikin to determine whether his present status is that of an insane person.

It was judicially known to this court at the time of the issuance of said order that the regular term of the district court of Caldwell county would not begin until the-day of October, 1927; and it was further known that the said district court of the Twenty-Second judicial district of Texas was in session in another county of the district and that Hon. M. C. Jeffrey was there presiding.

Prom the documents before us, it is made known that Hon. M. C. Jeffrey, judge aforesaid, in obedience to the directions of this court, prepared to try the said Millikin upon the issue mentioned, and to that end ordered the organization of a special term of said court at Lockhart, in Caldwell county, at which place the law directed that such trial be had. The law pertaining to the selection of juries, so far as applicable, is contained in several statutes. In articles 2104-2107, R. S. 1925, it is declared that the district court, at each term, shall appoint three jury commissioners to select persons who shall compose the jury for the succeeding term. In article 640, C. C. P. 1925, it is declared:

“When, from any cause, there are no regular jurors for the week from whom to select a jury, the court shall order the sheriff to summon forthwith such number of qualified persons as it may deem sufficient; and, from those summoned, a jury shall be formed.”

This court has held, wheye there was an arbitrary refusal to appoint jury commissioners at the previous term, that advantage might be taken of such failure by one on trial for the succeeding term. See Woolen v. State, 68 Tex. Cr. R. 189, 150 S. W. 1165. Where the failure to appoint jury commissioners at the previous term was by inadvertence, or for some good cause, complaint of it is not tenable, but the judge at the succeeding term would have the privilege of supplying a jury either by the appointment then of jury commissioners or supplying a jury under the terms of article 640, supra, or article 2108, R. S. 1925. See Ex parte Holland, 91 Tex. Cr. R. 343, 238 S. W. 654; Sanchez v. State, 94 Tex. Cr. R. 606, 252 S. W. 548; Gray v. State, 99 Tex. Cr. R. 305, 268 S. W. 941, 269 S. W. 1056; Bennett v. State, 95 Tex. Cr. R. 422, 254 S. W. 949. One who would take advantage of the failure to appoint jury commissioners must assume the burden of showing that the failure was not for good cause. Sanchez v. State, supra. It has been held' that if, during a regular term, a special term is called to convene after adjournment of the ¡regular term and the necessity for a jury commission is not foreseen by the regular judge, and he, for that reason, omits the appointment of jury commissioners, the judge presiding at tiie special term may proceed to secure a jury either by the appointment of jury commissioners or by an order summoning jurors by the sheriff, as provided in article 640, supra. See King v. State, 90 Tex. Cr. R. 289, 234 S. W. 1107; Sanchez v. State, supra.

In the present instance, as indicated above, the learned trial judge presiding in the district court of the Twenty-Second ju-dieial district of Texas, holding his regular term of court in Comal county, Tex., was confronted with an unforeseen emergency requiring that he organize a special term of court in Caldwell county to try the lunacy case in question; that at the preceding regular term in Caldwell county no provision could have been made or foreseen for the calling of the special term now in session or the selection of a jury, but the duty and power rested with the learned trial judge, after convening such special term, to secure a jury as required by the statutes, the manner of such selection within the terms of the law; that is, through the sheriff or by means of jury commissioners being within his judicial discretion. Moreover, it is pointed out in Bennett’s Case (95 Tex. Cr. R. 422, 254 S. W. 949), that originally the statutory law did not authorize the calling of a special term except that the call be made during the regular term. By subsequent amendment, power was given so that the judge might either in term time or vacation call a special term of court. Such power necessarily implies that in a special term of court called in vacation the statutory provision requiring the appointment of a jury commission at the previous term did not operate. The law on the subject, as we understand it, now is that the district judge is obligated at each regular term of court to appoint jury commissioners to select grand and petit juries for the succeeding term in the same county and district; that'if he fails to do so, for any good cause, he may, at the succeeding term, procure a jury either through jury commissioners or through the . sheriff. If his refusal to appoint jury commissioners at the previous term is shown to be arbitrary, complaint of it would be available to an individual charged with crime and put on trial at the succeeding term. The principle controlling might be applicable to a special term called during the regular term, but not to a special term called in vacation, as was the one under considera-' tion in this case. This much has been said concerning the merits of the question presented.

We desire to add; however, that in the lunacy proceeding under consideration, this court has no supervisory control over the manner of trial or over the exercise of judgment Of the trial judge in the selection of a' jury or the introduction of evidence or other matters of procedure. The jurisdiction of the Court of Criminal Appeals is appellate save in the matter of writs of habeas corpus, of which it has original jurisdiction. Its right to issue writs of mandamus accrues only “to enforce its jurisdiction.” . The remarks here made are emphasized by the opinion of the Supreme Court of this state refusing to permit the filing of an application for a writ of mandamus involving substantially the same questions that are involved in the present inquiry.

Our conclusion is that for this court to issue a writ of mandamus upon an ex parte hearing would be contrary to the statute which is quoted in the beginning of this opinion ; that the matter involved is but a mere mattqr of procedure in the trial court over which this court, save in some cases of appropriate appeal, has no control; that the appellate jurisdiction of‘this court is confined to criminal cases; that a lunacy trial is not a criminal case and therefore is not appealable. See Darnell v. State, 24 Tex. Cr. App. 6, 5 S. W. 522; Ex parte De Silvia, 98 Tex. Cr. R. 499, 267 S. W. 271.

For the reasons stated, it is clear that we would have no authority to issue a writ of mandamus because of the facts averred in the petition. It therefore becomes our duty to refuse to permit the filing of the motion. 
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