
    SANCHEZ v. STATE.
    (No. 7534.)
    (Court of Criminal Appeals of Texas.
    June 13, 1923.)
    1. Grand jury &wkey;>8 — Court may not arbitrarily ignore statute directing appointment of jury commission.
    The trial court may not arbitrarily or captiously ignore Code Cr. Proc. 1911, art. 384, directing that a jury commission be appointed which shall select a grand jury for the next succeeding term.
    2. Criminal law <&wkey;J 144(2) — Existence of conditions authorizing action of court in summoning grand jury presumed in absence of proof of contrary.
    Under Code Cr. Proc. 1911, art. 399, providing that, if for any cause there should be a failure to select and summon a grand jury, the district court shall direct a writ to the sheriff commanding him to summon persons to serve as grand jurors, the existence of such conditions as authorized the trial court’s action in directing a writ to the sheriff will be presumed in support thereof, unless the contrary appears.
    3. Criminal law »&wkey;l 141 (2) — One attacking ruling of trial court assumes burden of overcoming a presumption in court’s favor.
    One who attacks a ruling'of the trial court assumes the burden of overcoming the presumption that obtains in its favor.
    4. Criminal law &wkey;»394 — Proof of finding liquor in possession of defendant without search warrant properly received.
    In a prosecution for unlawful transportation, proof that intoxicating liquor was found in defendant’s possession without a search warrant was properly received.
    5. Intoxicating liquors &wkey;>2l6 — No averment of percentage of alcohol required.
    Where indictment charged transportation of liquor capable of producing intoxication, no averment of the percentage of alcohol was required.
    Appeal from District Court, Presidio County; Ballard Caldwell, Judge.
    A. Sanchez was convicted of unlawful transportation of intoxicating liquor, and he appeals.
    Affirmed.
    De Witt Murray, of Marfa, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State. x
   MORROW, P. J.

The conviction is for the unlawful transportation of intoxicating liquor ; punishment fixed at confinement in the penitentiary for a period of one year.

Complaint is made of the refusal of the court to quash the indictment. The attack made in the trial court was by a motion in which it is charged that the trial judge at the next preceding term neglected and refused to appoint jury commissioners to select a grand jury for the succeeding term, and that in consequence thereof the grand jury that found the bill of indictment against the appellant was selected by a jury summoned by the sheriff. The bill contains this statement:

“ * * * That the court neglected and failed at such prior term to appoint jury commissioners for the purpose of drawing a grand jury, or other jury.”

It is said in the bill that “it was proved to the court that the allegations set out in the above motion were true.” The law directs a jury commission to be appointed which shall select a grand jury for the next succeeding term. See article 384, O. C. P. In article 399, O. C. P., power is given the trial court to cause the sheriff to summon persons who may be impaneled as grand jurors. The language used is this:

“If, for any cause, there should be a failure to select and summon a grand jwry, as herein directed, or, when none of those summoned shall attend, the district court shall, on the first day of the organization thereof, direct a writ to be issued to the sheriff, commanding him to summon any number of persons, not less than 12 nor more than 16 persons, to serve as grand jurors.”

The words “if for any cause,” as contained in the statute, have been construed to mean .“if for any good cause.” This we understand to be the effect of Woolen’s Case, 68 Tex. Cr. R. 189, 150 S. W. 1165. From Ex parte Holland, 91 Tex. Cr. R. 344, 238 S. W. 656, we take the following:

“At a regular term, the preferred way of selecting a grand jury is by jury commissioners. This is emphasized in White v. State, 45 Tex. Cr. R. 597, 78 S. W. 1066, and Woolen v. State, 68 Tex. Cr. R. 181, 150 S. W. 1165, to which we referred in the original opinion, and that method is not to be arbitrarily disregarded at a special term. But with this qualification, article 399 of the Code of Criminal Procedure is, in our judgment, also available, and in this connection we will add that in a case' like the present, where it is not apparent that there will be need for a grand jury at the-beginning of the term and there was good cause for not then appointing jury commissioners and causing a grand jury to be selected by them, and subsequent developments made a grand jury necessary, it might be selected by the sheriff in accord with article 399. See King v. State (Tex. Cr. App.) 234 S. W. 1107.”

The trial court may not arbitrarily or captiously ignore the provisions of article •384, supra. The Legislature, having by article 399, supra, conferred upon the trial judge the power to select a grand jury by means named in that article under certain circumstances, the existence of such conditions as authorize his action will be presumed in support of it, unless the contrary is made to appear. One who attacks the ruling of the trial court assumes the burden of overcoming the presumption that obtains in its favor. See Johnson v. State, 14 Tex. App. 310; also numerous cases cited in Vernon’s Grim. Stat. vol. 2, pp. 889 and 897; also pages 892 and 893. The record in the instant case failing to show that the failure of the trial judge to order a jury commission at the preceding term was not upon good cause, the presumption of the legality of his conduct will prevail.

Proof that intoxicating liquor was found in possession of the appellant without a search warrant was properly received. See Welchek v. State (Tex. Cr. App.) 247 S. W. 524.

The indictment charged the transportation of “spirituous, vinous and. malt liquors capable of producing intoxication.” No averment of the percentage of alcohol contained in the liquors was required. See Estell v. State, 91 Tex. Cr. R. 481, 240 S. W. 913.

There are no other matters requiring discussion.

The judgment is affirmed. 
      @=»For other oases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes
     