
    TOMLIN v. STATE.
    (No. 11218.)
    Court of Criminal Appeals of Texas.
    Jan. 11, 1928.
    Jury <&wkey;72(l) — Arbitrary discharge of panel for week and trial before jury selected by sherifF held error (Code Cr. Proc. 1925, arts. 631, 640).
    Where, in prosecution for possession of intoxicating liquor for purpose of sale, accused was first tried before jury selected from regular jury panel for second week of term, and mistrial resulted, and court discharged entire panel for week and during same week case was called for second trial, and court overruled request for postponement and case was tried by jury selected by sheriff under Code Cr. Proc. 1925, art. 640, providing, when there are no regular jurors for week, sheriff on court’s order may summon sufficient number of qualified persons, held that court may not arbitrarily discharge panel; and under article 631 proper procedure would have been to complete the panel after its number had been reduced to less than 12.
    Commissioners’ Decision.
    Appeal from District Court, Shackelford County; M. S. Long, Judge.
    Ethel Tomlin was convicted of possession of intoxicating liquor for purpose of sale, and she appeals.
    Reversed and remanded.
    F. L. Kuykendall, of Albany, and J. Lee Cearley, of Cisco, for appellant.
    A. A.- Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose, of sale; the punishment confinement in the penitentiary for four years.

Appellant complains of the action of the trial court in forcing her to trial before a jury summoned by the sheriff. It appears from bill of exception No. 6 that appellant was first tried before a jury selected from the regular jury panel for the second week of the term, and that a mistrial resulted; that at the time of the former trial there 'were only 20 regular jurors present, and that from such number and 6 talesmen a jury was chosen; that after the trial the court discharged the entire panel for the week for the reason that a part of the panel had served as jurors on the first trial of appellant. When, during the same week, the case was called for a second trial, appellant made a written request for a postponement until the third week of the term in order that she might have the benefit of the regularly drawn jury for that week. The trial court overruled the motion to postpone and required appellant to proceed to trial before a jury selected by the sheriff. While article 640, C. C. P. ■ 1925, provides that “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,” it is not our understanding that the court has authority to arbitrarily discharge the panel regularly drawn for the week and require the accused to go to trial before a jury selected by the sheriff. Among those thus excused by the court were several jurors of the regular panel who had not sat on the former trial of appellant. Under article 631, O. O. P. 1925, the proper procedure would have been to complete the panel after its number had been reduced by challenges to less than 12. The arbitrary disregard of the provisions of this statute deprived appellant of a substantial right and constituted error. See Bruce v. State, 76 Tex. Cr. R. 72, 173 S. W. 304.

For the error discussed, the judgment is reversed and the cause remanded.

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.  