
    Paul Highsaw v. The State.
    No. 6424.
    Decided October 26, 1921.
    Grand Jury — Constitutional Law — Indictment—Quorum.
    Grand and petit juries in the District Court shall be composed of twelve men; but nine members of the grand jury shall be a quorum to transact business and present bills, and- where the' indictment against the defendant was returned by a grand jury composed of more than twelve men, the same is void. Following Ex Parte Reynolds, 35 Texas Crim. Rep., 437, and other cases. Besides, is insufficient in not alleging the materiality of the alleged false testimony.
    Appeal from the District Court of Knox; Tried below before the Honorable J. H. Milam.
    Appeal from a conviction of perjury; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    No brief on file for appellant.
    
      R. G. Storey, Assistant-Attorney General, for the State.
    Conceded error and cited cases in opinion.
   MORROW, Presiding Judge.

Conviction is for perjury. The .judgment must be reversed and the prosecution dismissed because the indictment is wanting in an essential requisite in that there is no sufficient averment charging the materiality of the alleged false testimony. The indictment is not in any material sense different from that before the court in the case of Bell v. State, 75 Texas Crim. Rep., 401, 171 S. W. Rep., 239 and Scott v. State, 75 Texas Crim. Rep., 396, 171 S. W. Rep., 243.

The motion to quash the indictment was overruled. As we understand the record, it was shown that the grand jury was composed of fourteen persons. In the Constitution, it is said:

“Grand and petit juries in the district courts shall be composed of twelve men; but nine members of a grand jury shall be a quorum to transact business and present bills.” (Art. 5, Sec. 13.)

A grand jury otherwise composed has been uniformly declared by this court to be void. Lott v. State, 18 Texas Crim. App. 627; Ogle v. State, 43 Texas Crim. Rep. 219; Harris’ Texas Constitution, page 435. If the indictment against the appellant was returned by a grand jury composed of more than twelve men (and such we understand to be a fact as disclosed by the record) it is void. Ex parte Reynolds, 35 Texas Crim. Rep. 437.

The judgment is reversed and the prosecution ordered dismissed.

Dismissed.  