Opinion
No. 19290.
Delivered March 30, 1938.
Grand Jurors — Jury Commissioners — Failure to Select.
The intentional failure of trial judge, in the interest of economy, to appoint a jury commission to select a grand jury for succeeding term of court, and selection of a grand jury by a jury commission which was appointed by the judge during the term of court at which the indictment was returned, held to require reversal of conviction of defendant indicted by grand jury so chosen, where, at time the jury commissioners were appointed to select the grand jury for said term, defendant was not under arrest nor under complaint of any kind and no charges whatsoever had been filed against him, and hence defendant did not have opportunity to challenge grand jurors at time they were impaneled.
Appeal from the District Court of Hidalgo County. Hon. Bryce Ferguson, Judge.
Appeal from conviction for extortion; penalty, confinement in penitentiary for two years.
Reversed, and prosecution ordered dismissed.
The opinion states the case.
A. W. Cameron, of Corpus Christi, F. G. Garza, of Edinburg, and Epperson Bridges, of Mission, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Appellant was convicted of the offense of extortion and his punishment was assessed at confinement in the State Penitentiary for a term of two years.
In this case, as in the case of "Chon" Martinez v. The State, recently decided by this Court but not yet reported [page 180 of this volume], we are confronted with the question of the selection of a grand jury by a jury commission which was appointed by the judge during the term of court at which the indictment was returned.
Appellant made a motion to quash the indictment because the judge had arbitrarily disregarded Article 333, C. C. P., in the appointment of a jury commission to select a grand jury; that he had consistently done so since he was first installed into office. At a hearing of the motion, the court admitted that he had disregarded Article 333 in the interest of economy and for that reason had resorted to Article 348, C. C. P. It further appears from the record that at the time the jury commissioners were appointed to select the grand jury for said term of court, appellant was not under arrest or under a complaint of any kind and no charges whatsoever had been filed against him.
It is obvious that the appellant did not have an opportunity to challenge the grand jury at the time they were impaneled. It further appears that after he was indicted, he in due time filed a motion to quash the indictment for the reasons stated.
The identical question was presented to this Court in the case of Martinez v. State, supra, and was there discussed at length.
For the reasons there stated, the judgment of conviction in this case is reversed and the prosecution ordered dismissed.
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.