Ex Parte Harris , 118 Tex. Crim. 154 ( 1931 )

Relator still insists that the trial court had no right to re-impanel the grand jury, but that if he did have such right, then nothing appears in the record to show that it was ever re-impaneled or who composed the claimed re-impaneled body which returned the indictment against relator.

We may be confused as to what the record before us shows, but believe it reveals the following: First, that the grand jury was originally impaneled on March 11, 1929. In the order of such impanelment is contained the names of the twelve men composing the grand jury, which included one McDaniel. Second; the grand jury was re-impaneled on April 8th. The order then recites:

"All of the grand jurors for the March term, 1929, being present in open court, with the exception of G. M. McDaniel, who is out of the city, the court instructed the sheriff to select one man to complete the body and O. C. Hope was substituted, and all the grand jurors were sworn by the court and instructed as to their duties, who afterwards retired for deliberations."

From the foregoing recitals it seems clear that the grand jury which was re-impaneled was composed of eleven men who were on the original grand jury, the twelfth man being Hope, who was substituted for McDaniel. The fact that all the grand jurors were again sworn, including Hope, and instructed as to their duties seems to justify the conclusion that the grand jury was re-impaneled.

It must be confessed that the record is somewhat confusing by the use of the terms "recessed", "adjourned", and "re-convened", as they were applied to the grand jury in question. But it must be borne in mind that the regularity of the court's action is to be presumed, and that the burden is on relator to show the contrary. The court's action in remanding relator must be presumed to have been based upon a finding that the grand jury which returned the indictment against relator was a legally constituted body, and we do not feel authorized under the record before us to hold to the contrary.

The motion for rehearing is overruled.

Overruled.