Pena v. State , 114 Tex. Crim. 15 ( 1929 )

DISSENTING OPINION ON MOTION FOR REHEARING. The following facts are shown by Bill of Exception No. 1. After convening the regular term of the District Court of Bee County in November, 1926, the elected judge was present and presided. After the organization of the grand jury it was recessed for fifteen days and the judge went to the county seat of Live Oak County and presided at a special term of the district court. During the absence of the regular judge a special judge was elected by the attending attorneys to preside over the District Court of Bee County. Subsequent to his election the special judge appointed three men as jury commissioners, charging them with the duty of drawing the grand and petit juries for the succeeding term of court. After qualifying, the jury commissioners prepared a list of grand and petit jurors as provided by statute and made return thereof to the district clerk. The regular judge resumed his control over the District Court of Bee County and thereafter entered an order vacating the appointment of the jury commissioners mentioned. He also appointed other persons as jury commissioners and directed them to prepare a list of grand and petit jurors for the succeeding term. The list previously prepared by the jury commissioners appointed by the special judge was in the hands of the clerk, duly sealed, but the regular judge ordered that they be disregarded. At the succeeding term of court the grand jury was empaneled from the list prepared by the jury commissioners appointed by the regular judge under the circumstances above indicated. The appellant having brought himself within the purview of the law permitting a challenge to the array of the grand jury, sought an annulment of the indictment against him. On the hearing of the motion the record showing the proceedings of the court, both those under the control of the regular judge as well as those under the special judge, were introduced and made a part of the bill of exception, including the order of the regular judge vacating the proceedings which, in setting forth the reasons for his action, embraced the following:

"* * * but it further appearing that said jury commissioners overlooked or failed to select a special venire list as required by article 593 of the Code of Criminal Procedure, and it further appearing that in cause number 1798 the State ofTexas v. Secondino Rodriquez charged with the offense of murder the question of race discrimination has been raised by the attorney for the defense in that the defendant is a Mexican, and that no Mexicans had been selected by the former jury commissioners as jurors for the present term of this court and by reason thereof no Mexican jurors are summoned on the specialvenires, and it further appearing that there are a number ofother Mexicans under indictment who might also raise the same question of discrimination when their cases shall be called at the next term of this Court, and that the matter of selecting or considering Mexicans for jurors has been heretofore overlooked who are qualified for and subject to jury service, if selected, and that it would be advisable for the jury commissioners to consider the selection of Mexicans as jurors when selecting the juries for the next regular term of this court, etc."

It is made evident by the bill that at the time the order was made, the list of grand and petit jurors prepared by the commissioners appointed by the special judge had not been opened. The means of knowledge of the contents of the list which is made the basis of the order is not revealed. The regular judge made a statement as a witness on the hearing of the motion which coincides with the averments therein and the reasons for his action as embraced in his order have hereinabove in substance been set forth.

At issue is the legal question touching the validity of the order of the regular judge which resulted in substituting the list of grand and petit jurors which were selected by the jury commissioners appointed by him for those which were originally appointed. In other words, had the regular judge the power under the facts revealed to annul the action of the special judge in appointing the commissioners and the actions of the commissioners so appointed in the performance of their duties? The statutory provisions for the selection and organization of the grand jury are embraced in Title 7, Chap. 1, C. C. P., 1925. In Art. 333, C. C. P., the declaration is made that the district judge shall at each term appoint jury commissioners, setting forth the qualifications of the persons to be appointed as jury commissioners. Art. 335 prescribes the oath of the jury commissioners. Art. 336 contains the substance of the instructions that shall be given to them by the presiding judge. Art. 337 provides for their freedom from intrusion while performing their work and forbids their separation without leave of the court until their duties have been completed. Art. 338 provides that the jury commissioners shall select sixteen men from the citizens of the different portions of the county to be summoned as grand jurors for the next term of court. Art. 339 provides that none shall be selected save those who possess the qualifications enumerated in the article. Article 340 requires that the names of those selected as grand jurors by the commissioners shall be written upon a paper, together with the fact of their selection, which paper shall be certified, signed and placed in an envelope and sealed with the indorsement: "The list of grand jurors selected at the _____ term of the district court," giving the term of court; and the commissioners shall write their names across the seal of the envelope and direct the same to the district judge and deliver it to him in open court. Art. 341 provides that the list shall be delivered to the clerk in open court without opening the same. Art. 342 declares that the clerk shall make oath that the lists will not be opened nor permitted to be opened until the time prescribed by law. The law as construed by this court in many reported decisions demands a substantial compliance with the statutory provisions mentioned, and that an arbitrary disregard of them will necessitate, upon proper demand by one indicted for a crime, the annulment of the indictment. Among the cases in point are Woolen v. State, 68 Tex.Crim. R.; Ex parte Holland, 91 Tex.Crim. R.; Russell v. State, 92 Tex. Cr. 93; Saulter v. State, 92 Tex.Crim. R.; Sanchez v. State,94 Tex. Crim. 606; Simms v. State, 102 Tex.Crim. R.; Barton v. State, 103 Tex.Crim. R.; Hunter v. State, 108 Tex. Crim. 142. The Constitution, Art. 5, Sec. 11, expressly provides for the selection of a special judge under certain circumstances, committing to the Legislature in some particulars the designation of the manner of selection. See Patterson v. State, 87 Tex.Crim. R.; Strahan v. State, 87 Tex.Crim. R.; Carroll v. State, 104 Tex.Crim. R.. See Vernon's Tex. Const., Ann. Vol. 1, p. 365, for numerous precedents. By statute it has been provided the various means of selecting a special judge, among them that which was pursued in the present instance. See Art. 1887, Revised Civil Statutes, 1925. No present question arises touching the legality of the selection of the special judge or his qualification. A special judge presiding over the district court in the absence of the regular judge is charged with the duties and possesses the same powers as those of the regular judge. Ex parte Holland, 91 Tex.Crim. R.; Lowe v. State, 83 Tex.Crim. R.; State v. Blanchett, 24 N.M. 433; Biggins v. State, 3 S.W.2d 816; Corpus Juris, Vol. 33, p. 1032, sec. 224; also p. 1038; Ruling Case Law, Vol. 15, p. 517, also p. 530.

Nothing is found in the statute expressly fixing the duration of the term of office of jury commissioners. To the writer the implication seems plain that after their appointment and qualification they, at any time during the term, would be available to the court and might be recalled by the judge to complete or supplement their report. It seems manifest that they, being public officers, duly appointed and qualified in accord with the statute, could not be summarily dismissed in the absence of the existence of some disqualifying condition or conduct. Of such condition or conduct the record in the present instance seems void. An analysis of the reasons impelling the dismissal of the jury commissioners appointed by the special judge and the annulment of their report leaves, in the mind of the writer, no doubt that there existed no adequate or legal reason justifying the act. It appears from the order of the court that there stood for trial at the term of court at which the order was made a murder case against a Mexican and that there were other Mexicans under indictment; that at the previous term the jury commissioners had ignored the Mexican citizens in preparing the jury list; that it was contemplated that a legal question would be raised touching the validity of their report as affecting Mexican citizens. It is to be noted that nothing in the order nor in the testimony of the judge discloses any failure on the part of the jury commissioners who were discharged and whose report was annulled to take cognizance of the Mexican citizens in preparing the list of jurors for the succeeding term. Obviously, the jury commissioners appointed by the special judge at the Spring term of 1927 were in no sense responsible for the shortcomings or mistakes of the jury commission who acted at the November term, 1926.

Touching the references in the order to the failure of the jury commissioners appointed by the special judge to designate a list for special venire service as required by Art. 593, C. C. P., the remedy was at hand without discharging the jury commissioners by recalling them to the end that they might supply the omission. The present controversy grows out of the claim upon the part of the appellant that the grand jury which found the indictment against him was not the grand jury selected by the jury commissioners legally appointed. The grand jury which found the indictment was not selected by the jury commissioners appointed by the special judge, but was found by the jury commissioners appointed by the regular judge after he had ordered the annulment of the appointment of the jury commissioners appointed by the special judge. From this statement it is plain that nothing in the record challenges the inadequacy of the performance of the duties of the jury commissioners appointed by the special judge in the selection of the men who composed the grand jury. They had under their oaths made the selection of sixteen men and reported it under oath in the form prescribed by statute and placed it in the hands of the clerk. At the time of the annulment of their work the list had not been opened. The law did not permit it to be opened, and so far as the record shows, no subsequent development revealed any fact that in the selection of the men to serve as grand jurors there had been any failure to meet the conditions suggested with reference to the Mexican citizens or to otherwise discredit the report. There is no intimation that in the performance of their duties they acted in bad faith nor that they were in any sense disqualified. Nor does it appear that they were not available to complete the work by the selection of a special venire list.

The announcement of this court with reference to the chapter of the statute under consideration declares that the intentional disregard by the district judge of the statutes requiring the appointment of jury commissioners at each term to select jurors and grand jurors for the next term is a violation of the right of trial by jury as guaranteed by the Bill of Rights. See Woolen v. State, 68 Tex.Crim. Rep., and authorities collated therein. These decisions do not turn upon the question of injury, but as quoted in the opinion of Judge Davidson in the Woolen case, supra, wherein it is said:

"The right of trial by jury stands upon a higher plane than expediency; and fair trial by jury means a jury selected according to the law regulating their selection and impanelment. We therefore hold that appellant was denied, by the intentional action of the judge, of the right of trial by a legal jury."

The quotation above is taken from the opinion of this court written by Judge Henderson in the case of White v. State,45 Tex. Crim. 597. The principle announced has not been questioned in subsequent decisions but has been consistently followed as will be observed by the citation of the precedents above mentioned, and in the following decisions has been given application to Art. 338, C. C. P., by which it is made the duty of the jury commissioners to select sixteen men to be summoned from whom to select the grand jury for the succeeding term of court. See Hunter v. State, 108 Tex.Crim. R.; Simms v. State, 102 Tex.Crim. R.. That in the present instance the list of grand jurors regularly returned by the jury commissioners appointed by the special judge was not used in selecting the grand jury which found the indictment against the accused, the refusal to use it was intentional.

If it be conceded that the conditions detailed by the trial judge explanatory of his reason for annulling the action of the jury commissioners appointed by the special judge in selecting the sixteen men who were to compose the grand jury were of cogency and importance warranting the action last mentioned, the record is void of any reason for dispensing with the jury commissioners who were appointed by the special judge. The legality of the appointment of the jury commissioners by the special judge is not impugned; nor is the eligibility, capacity, integrity or the diligence of the jury commissioners so appointed put in question by any part of the record. It is bare of suggestion of their unavailability or any emergency which prevented the recall of them in order that they might perform, in a manner acceptable to the regular trial judge, the duties which, in their first assembly, had been overlooked or left incomplete. To the mind of the writer, tested by the record, the action of the regular judge in annulling the appointment of the jury commissioners who were appointed by the special judge is supported by no apparent reason or condition, and in a legal sense, cannot, in the opinion of the writer, be regarded as other than an arbitrary discharge of a jury commission regularly appointed and substituting in place of the men composing the commission others named by the regular judge. We assume that the learned trial judge who governed the transaction acted in good faith with no intent or desire to contravene the laws enacted to make effective the right of trial by an impartial jury as guaranteed by Sec. 10, Art. 1, of the Constitution. The procedure adopted is an innovation without precedent so far as the writer is aware, and one which if given sanction by this court in this particular case would furnish a precedent which might be used to seriously impair the right of trial by jury.

Regarding the question involved in importance as reaching far beyond that of the re-trial of the present case, and entertaining, as the writer does, the fixed opinion that the action of the regular judge in annulling the appointment of the jury commissioners by the special judge under the circumstances detailed in the record and set forth in this opinion, and disregarding the list of grand jurors selected by such jury commissioners, the writer, with due deference to the contrary opinion of his associates, is constrained to withhold his consent to the overruling of the motion for rehearing.