Hill v. State , 146 Tex. Crim. 333 ( 1943 )

In his motion for rehearing appellant takes the position that the grand jury which first indicted him was an illegally constituted grand jury, and that the purported indictment returned against him by that body was in fact no indictment at all; that, therefore, the Act of the 47th Legislature set out in our original opinion has no application to his case and that the present indictment having been returned more than a year after the offense was committed the prosecution is barred under the one year statute of limitation in prosecutions for rape.

As supporting his contention appellant cites Wells v. State,2 S.W. 806; Rainey v. State 19 Tex. App. 479[19 Tex. Crim. 479]; Lott v. State, 18 Tex. Crim. 627; Ex parte Reynolds, 35 Tex.Crim. R.,34 S.W. 120; Ex parte Ogle, 61 S.W. 122; Ogle v. State, 43 Tex. Crim. 219,63 S.W. 1009; Stroud v. State, 90 Tex.Crim. R.,235 S.W. 214; Riddle v. State, 90 Tex.Crim. R., 236 S.W. 725. All of these cases are where a grand jury was composed of either more or less than 12 men. In such cases every act of a grand jury thus organized has been held to be a nullity on the ground that it was in fact no grand jury. Those authorities furnish no parellel to the organization of the grand jury which returned the first indictment against appellant and do not in our opinion support appellant's position.

An attack upon the validity of the first indictment against appellant based upon claimed discrimination because of his color could not affect the validity of said grand jury's acts in other instances. Indictments returned by that body would be valid save those which charged crimes to members of the class discriminated against. The point raised by appellant against the first indictment did not challenge the legality of the grand jury which presented it, or question the qualifications of the members composing the grand jury. It was an attack upon the validity of a particular act of said grand jury for the reason that the act done was directed against the member of a class against whom discrimination was claimed. Juarez v. State, 102 Tex.Crim. R., 277 S.W. 1091. The particular indictment thus assailed was held invalid as against appellant. It cannot be held to have been no indictment, as urged by appellant. The terms of the Act of the 47th Legislature appear to be applicable.

The motion for rehearing is overruled.

ORDER GRANTING STAY OF MANDATE.