
    Aaron Clifton Foreman v. State
    No. 32,440.
    November 16, 1960
    
      Stewart & White, by Thomas D. White, Houston, for appellant.
    
      Dan Walton, District Attorney, Houston, and Leon Douglas, State’s Attorney, Austin, for the state.
   BELCHER, Judge.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of fifty dollars.

In order to convict the appellant of the offense charged, it is essential that the state prove beyond a reasonable doubt that he drove a motor vehicle upon a public highway while intoxicated.

There are no facts or circumstances showing when the parked automobile in which appellant was seated was driven on the highway or that the appellant was intoxicated before or at the time it was parked near the highway.

Here, the instant facts are deemed sufficient to support the conclusion that in the selection of the grand jury which returned the indictment a member of the grand jury commission selected prospective grand jurors with the view that those selected would return an indictment against this appellant.

We have concluded that the learned trial court fell into error in failing to sustain appellant’s motion to quash the indictment.

The judgment is reversed and the prosecution is dismissed.

WOODLEY, Judge,

(dissenting).

To that portion of the majority opinion which dismisses the prosecution upon the ground that one of the jury commissioners selected prospective grand, jurors with the view that such grand jury would indict appellant, I do not agree and respectfully enter my dissent.  