Rios v. State , 162 Tex. Crim. 609 ( 1956 )

DAVIDSON, Judge.

The offense is murder; the punishment, three years in the penitentiary.

The so-called jury wheel system for drawing and selecting petit juries, Arts. 2094 and 2095, R.C.S., as amended, Vernon’s Ann.Civ.St., is applicable and controlling in each county having two (2) or more district courts holding sessions therein and having a population in excess of twenty thousand (20,000) inhabitants according to the last preceding federal census.

In 1954, by Chapter 54, Acts of the First Called Session of the 53rd Legislature, and appearing as Art. 199, Dist. 25; Vernon’s R.C.S-., Vernon’s Ann.Civ.St., the legislature created the Special 25th Judicial District Court, composed of Gonzales, Colorado, Lavaca, and Guadalupe Counties. Those counties also composed the 25th Judicial District of Texas.

From and after the passage of that act, there existed in the counties named two district courts holding sessions therein, and three of those counties, viz., Guadalupe, Lavaca, and Gonzales, each had a population in excess of twenty thousand inhabitants according to the census of 1950, which, was the the last federal census.

The creation of the Special. 25th Judicial District had the effect of placing and did place the counties of Guadalupe, Lavaca, and Gonzales under the jury wheel system, Arts'. 2094 and 2095, R.C.'S.

Having less than twenty thousand inhabitants according to the last preceding federal census, the County of Colorado did not come within the provision of the jury wheel law.

In 1955, the legislature, by Chapter 2,. Acts Regular Session of the 54th Legis-' lature, provided that in the counties comprising the 25th Judicial District and the Special 25th Judicial District the jurors should be selected by jury commissioners in accordance with the provisions of Art. 2104, Revised Civil Statutes, the amendments thereto, and succeeding articles. It was also there expressly provided that the jury wheel method, Arts. 2094 and 2095, R. C.S., governing the selection of petit jurors should not apply in the counties named.

The effect, then, of the act or 1955 was to take the counties of Guadalupe, Lavaca, and Gonzales out of the jury wheel system for selecting juries and place'them under the jury commission system.

In the instant case the jury was selected by jury commissioners, in accordance with ■the 'provisions of the act of 1955.

By motion to quash the jury panel, appellant insisted that the act of 1955 was void and that the jury wheel system for the selection of jurors applied and was controlling in Guadalupe County.

It is here insisted that, thé act of 1955 is void because it is special or class legislation and violates Art. Ill, § 56, Constitution of Texas, Vernon’s Anh.St., which prohibits the legislature from'passing any local or special law authorizing, summoning, or •empaneling grand or petit juries, and which also provides that in all other cases where a general law can be made applicable no local or special law shall be enacted. ■ ■

A general law, within the meaning of the provision of the Constitution, is one which applies to and operates uniformly upon all persons or things of a class. Clark v. Finley, 93 Tex. 171, 54 S.W. 343.

A statute that exempts certain counties, arbitrarily, from its operation is a “ ‘local or special’ ” law. Anderson v. Wood, 137 Tex. 201, 152 S.W.2d 1084.

We have held that the jury wheel law, Art. 2094, R.C.S., is a general law. Rasor v. State, 57 Tex.Cr.R. 10, 121 S.W. 512; Merkel v. State, 75 Tex.Cr.R. 551, 171 S.W. 738; Herrera v. State, 78 Tex.Cr.R. 259, 180 S.W. 1097.

There is no escape from the conclusion that the' act of 1955 is a special law.

In Smith v. State, 120 Tex.Cr.R. 431, 49 S.W.2d 739, we held as void and unconstitutional a statute respecting jury selection which applied to only one county.

Appellant’s attack upon the act of 1955 is well taken and is sustained.

' The state insists that inasmuch as appellant did not offer in evidencé testimony showing the population of the counties named in the act of 1955, the question- as to the validity of thait act is not before us.

Courts take- judicial knowledge of the population of cities and counties reported in the United States census. Ervin v. State, 119 Tex.Cr.R. 204, 44 S.W.2d 380.

Judicial notice takes the place of proof and is of equal force, id.

Indeed, in Garza v. State, 138 Tex.Cr.R. 403, 136 S.W.2d 861, this court took judicial knowledge as to the population ;and the number of district courts of Bexar County and the City of San Antonio. .

The judgment is' reversed'.and the'cause is remanded.