
    BUTLER v. STATE.
    (No. 10877.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    Rehearing Denied Nov. 23,1927,
    I., Indictment and information <&wkey;l 10(57) — Information charging possession of seine and net within prohibited territory, in statutory language, held sufficient (Pern. Code 1925, art. 942).
    Information charging defendant with unlawfully possessing and carrying seine and net within certain prohibited territory, contrary to Pen. Code 1925, art. 942, held sufficient where using language of statute and charging conjunc-tively violation thereof in three different ways, all included within statute and punishable in same manner.
    2. Criminal law <&wkey;>639(4)— Prosecution might be conducted by appointed attorney, where there was no county attorney and district attorney was absent (Code Cr. Proc. 1925, art. 31).
    Prosecution of offense might he properly carried on by attorney appointed by court where there was no county attorney and the district attorney had filed the information and was absent, under Code Or. Proc. 1925, art. 31, authorizing appointment' of attorney to represent state when district or county attorney fails to attend.
    3. Criminal law &wkey;4 144(8) — In- absence of showing, appellate court cannot assume that county judge refused to appoint jury commissioners (Rev. St. 1925, art. 2104 et seq.).
    Where bills of exception make no showing on matter, Court of Criminal Appeals cannot assume that county judge violated his duty by deliberately refusing to comply with Rev. St. 1925, art. 2104 et seq., requiring appointment of jury commissioners.
    On Motion for Rehearing.
    4. Jury <&wkey;82(2)— Challenge to array should be entertained, where statutory method of selecting jurors by jury commissioners is arbitrarily disregarded (Code Cr. Proc. 1925, arts. 608, 609, 640, 641; Rev. St. 1925, art. 2104 et seq.).
    Challenge to array of jurors in criminal case should be entertained, and on sufficient facts sustained, where method of ^electing jurors by jury commission, provided by Rev. St. 1925, art. 2104 et seq., is arbitrarily disregarded, under Code Cr. Proc. 1925, arts. 608, 609, 640, 641.
    5. Jury <&wkey;82(2) — Overruling challenge to array because no jury commission was appointed held not error, where failure to appoint commission was not arbitrary or willful (Rev. St. 1925, arts. 2104, 2109-2116; Code Cr. Proc. 1925, arts. 608, 609, 640, 641).
    Overruling challenge to array of jurors, interposed under Code Cr. Proc. 1925, arts. 608, 609, 640, 641, on ground that no jury commission had been appointed by judge, as required by Rev. St. 1025, arts. 2104, 2109-2116, but that jurors had been selected by sheriff, held not error where there was no showing that judge’s failure to appoint jury commission was due to any arbitrary or willful action on hia part; presumption being that he did not deliberately refuse to comply with law.
    6. Jury <&wkey;!20 — Proof that failure to appoint jury commission was arbitrary might be made by showing custom and practice (Rev. St. 1925, art. 2104 et seq.; Code Cr. Proc. 1925, arts. 608, 609, 640, 641).
    Defendant in criminal case might prove that failure of county court to appoint jury commission to select jurors was in willful or arbitrary disregard of Rev. St. 1925, art. 2164 et seq., and warranted challenge to array, under Code Or. Proc. 1925, arts. 60S, 609, 640, 641, which proof might be made by showing custom and practice of county court.
    7. Criminal law <&wkey;l 144(8) — In absence of showing, appellate court might not assume that custom or practice of county court respecting appointment of jury commission was other than legal (Rev. St. 1925, art.* 2104 et seq.).
    In absence of some showing in bill of exceptions, Court of Criminal Appeals might not assume that custom or practice of county court respecting appointment of jury commission, under Rev. St. 1925, art. 2104 et seq., was other than legal.
    8. Criminal law <&wkey;l 141 (2) — Bill of exception must show that ruling was wrong.
    To obtain review of ruling of trial court, bill of exceptions must show to Court of Criminal Appeals that the ruling was wrong.
    9. Criminal law <&wkey;ll44(i/2) — In absence of showing, appellate court must presume that ruling was justified.
    Where there is no showing to the contrary, Court of Criminal Appeals must presume that ruling of trial court was justified.
    10. Criminal law i&wkey;1035(6) — Objection that jurors were selected by sheriff cannot be reviewed where first raised by motion for new trial (Rev. St. 1925, art. 2104 et seq.).
    Objection to array of jurors that judge failed to appoint jury commission as required by Rev. St. 1925, art. 2194 et seq., but that jurors were selected by sheriff, may not be first raised by motion for new trial and thus be preserved for review.
    Commissioners’ Decision.
    Appeal from Calhoun County Court; E. M. Tanner, Judge.
    Tom Butler was epnvicted of possessing and carrying a seine and net within prohibited territory, under Pen. Code 1925, art. 942, and he appeals.
    Affirmed.
    
      / Edward L. Dunlap, of Victoria, for appel lant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MARTIN, J.

„An information was filed against appellant under article 942 of the Penal Code, charging him with unlawfully possessing and carrying a seine and net within certain prohibited territory therein particularly set out. Appellant was convicted and his punishment assessed at a fine of .$25 and confinement in jail for 30 days.

Motion was made to quash the aforesaid information because same did not set forth the offense in plain and intelligible words, because same was duplicitous, and because same did not negative the exceptions contained in articles 942 and 943 of the Penal Code.

The information appears to be in the language of the statute and charges conjunc-tively a violation of said article 942 in three different ways, all included within the terms of said article and all punishable in the same manner. There is no uncertainty of meaning as to the offense intended to be charged. This information seems to meet the requirements laid down by this court. Branch’s P. C., § 510, p. 263, and section 506, p. 259, for 'full collation of authorities.

Objection was made by appellant to the prosecution of the case against him by an attorney appointed by the court. His bill of exception shows that there was no county attorney of Calhoun county and that the district attorney was absent. Article 31 of the Code of Criminal Procedure expressly authorizes the appointment of an attorney to represent the state when the district or county attorney fails to attend any term of the district, county, or justice court. The information was filed in this ease by the district attorney of Calhoun county. Under ■these facts, the court did not err in appointing an attorney to prosecute the case. Younger v. State, 76 Tex. Cr. R. 243, 173 S. W. 1039.

It seems that when this case was called for trial the court ordered the sheriff to summons twelve qualified jurrors to appear for jury 'service, and that such number did appear in obedience to said summons. By various bills of exception appellant attempts to raise the point that he could not be legally tried before the jury thus summoned, claiming that he was entitled to have a jury selected by a jury commission as provided by the statute. By express provision of article 640 of the Code of Criminal Procedure, the court is authorized to order the sheriff to summons such number of qualified persons as it may deem sufficient when for any cause there are no regular jurors for the week. It has been held that, where the county judge intentionally refuses to appoint jury commissioners to select jurors for the term, a ■substantial right is denied a person who is tried by a jury selected by a sheriff. White v. State, 45 Tex. Cr. R. 697, 78 S. W. 1066. This rule does not apply when through inadvertence or oversight there has been a failure to select jurors by means of jury commissioners. Hurt v. State, 51 Tex. Cr. R. 338, 101 S. W. 806.

■ The bills of exception taken fail to show that there was an intentional disregard of the statute for the appointment of jury commissioners, and we would have no right to assume, in the absence of such showing, that the county judge had violated his duty and deliberately refused to comply with the terms of the law.

Believing that the record fails to show error and that the evidence is sufficient to support the verdict, the judgment is affirmed.

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.

On Motion for Rehearing.

MORROW, P. J.

In his motion for rehearing appellant insists that by both this court and the trial court he'has been denied a substantial right in the overruling of his challenge to the array of jurors. The point made is that the jurors were not selected by a jury commission, but summoned by the sheriff, and that the failure to appoint a jury commission entitled the appellant to set aside the panel. The right to challenge the array and the procedure therefor is set out in articles 608, 609, and 641, C. C. P. 1925. The trial judge seems to have been of the opinion that the motion could be sustained only by proof that the sheriff had acted corruptly, and that such proof the appellant disclaimed an intention to tender. Such, it is true, is the language of the statutes mentioned, but in instances where the statutory method of selecting jurors has been arbitrarily disregarded, a motion to set aside the panel will be entertained, and upon sufficient facts sustained. This is the ruling in White v. State, 45 Tex. Cr. R. 597, 78 S. W. 1066.

Considering bill No. 8, upon which reliance is had to present the question, in connection with the affidavits filed challenging the array, we find that the appellant set up the fact that no jury commissioners had .been appointed, and, calling attention to article 2104, R. S. 1925, and others, requiring the appointment of jury commissioners at a previous term, he points to articles 2109-2116, R. S., stating:

“ * * * And says that the array of jurors summoned in this court for the trial of' this cause, as summoned by the officer so summoning the said jurors for the trial of this cause in this court on this day, has not been summoned in accordance with the plain and express provision of the law of the state of Texas relative thereto.”

Neither in the motion nor in the bill of exceptions is there any statement or averment that the failure to appoint jury commissioners was due to any arbitrary action upon the part of the trial court. The right to set aside the panel for the reasons stated does not accrue where the failure 'to seleet a jury commission is due to a good cause, but accrues only when the failure reflects an arbitrary or willful action upon the part of the trial court. See White v. State, supra; Woolen v. State, 68 Tex. Cr. R. 189, 150 S. W. 1165; 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; King v. State, 90 Tex. Cr. R. 289, 234 S. W. 1107; also article 640, C. C. P. 1925.

The only averment touching the evidence which the appellant desired to introduce is stated in the bill in these words:

“ * * * That the evidence wished to be introduced was as to what the county cleric and the judge of the court, E. M. Tanner, would testify to as to the selection of jurors by jury commissioners in the past four or five years, and the custom and practice in this court as to such selection of juries by jury commissioners.”

This statement is that the appellant expected to show what the witnesses would testify to with reference to the selection of. jury commissioners for the past four Or five years, and the custom and practice of the court with regard thereto, hut fails to state ■ in what respects, if any, the custom and practice of the court were violative of the statutes in question. To entitle the appellant to quash the panel, it was necessary that he introduce testimony to show not only that the court in the present instance had failed to seleet jury commissioners, but that in doing so his action was willful or arbitrary. This proof might be made by showing the custom and practice, but in the absence of something in the bill of exceptions showing what the custom or practice was, this court is not authorized to assume that it was other than legal. To invoke a review of the ruling of the trial court, it was necessary, that the bill of exceptions show to this .court that the ruling was wrong. In the absence of such a showing, the presumption obtains that it was justified.

Appellant, in his motion for new trial, is more specific, but the matter relied upon for a reversal is not one that may be' pr&■ served by a motion for new trial. The jury, however impaneled, might have acquitted the appellant or rendered a verdict to his- entire satisfaction. If so, the verdict ‘ would have been binding upon the state. To allow' one complaining of an irregularity, which would not render the jury void, to first raise the question on the. motion for new trial would accord him the privilege of an experimental trial in which he might be acquitted, but took no chance of a legal conviction. We will say that the custom and practice of ignoring statutory provisions with reference to the appointing of jury commissioners has never received the sanction of this court, but is condemned in the eases mentioned above, notably, White v. State, Woolen v. State, and others. If, pursuant to a general custom, the trial court ignored the statute requiring the appointment of a jury commission, this court would not hesitate to reverse the judgment, provided the motion was made in limine and in a bill of exceptions showing that the proof as tendered was preserved and the matter brought forward in a condition authorizing its review.

The motion for rehearing is overruled. 
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