Donegan v. State , 89 Tex. Crim. 193 ( 1920 )

The record having been corrected in the matters causing dismissal, upon motion this case is reinstated and considered on its merits. But one question is presented on appeal. It is made to appear that for many years no jury cases had been tried in Nacogdoches County at the April term of the County Court for the reason, as stated, that it was an agricultural county and to cause the jurors to leave their farms at that season would entail much loss. It is further shown that at its March 1920 sitting, the grand jury of said county returned a number of bills, and that being desirous of trying said persons so indicted, the county attorney asked the county judge to appoint jury commissioners to draw a jury for the April term, 1920, of said County Court. Learning that the jury commissioners for the District Court would meet on March 22, said county judge seems to have either named them as commissioners, or else to have requested them to act, in drawing a jury for said April term of the County Court. This was done and to the panel of jurors so presented appellant addressed a motion to quash stating therein that the county judge, "asked the district judge to let him appoint the same jury commissioners to draw a County Court jury for the April term of the county court, Nacogdoches County." It is held in Columbo v. State, 65 Tex.Crim. Rep., 145 S.W. Rep., 910, that the discretion of the county judge in selecting jury commissioners is not subject to review by an appellate court. In the absence of some statutory forbiddance we know no reason why a county judge may not appoint the same men as commissioners to draw juries for the County Court, who may be acting as District Court jury commissioners. The oath prescribed by statute for both sets of commissioners is the same, and said oath may be administered to both by the judge of either court or any other proper officer. The procedure in selecting jurors is the same and the object of having the jurors drawn by commissioners is the same in each court, to-wit to secure a fair and impartial jury. In the absence of any showing that the commissioners were not sworn to draw a jury for the County Court, we will presume that such was the case. Our presumption is always in favor of the regularity of official acts in the absence of a showing to the contrary. In the White case, 45 Tex.Crim. Rep., this court reversed because it was made to appear that the county judge intentionally omitted the appointing of any jury commissioners with the purpose of having the jurors selected and summoned by the officers; and the motion to quash the panel vigorously attacked this procedure for the reason that said officers were interested in that their fees were dependent upon conviction. In the instant case no such intention on the part of the county judge appears, but on the contrary the manifest purpose of said judge was to give to parties appearing before his court at the April term, trials before a jury drawn by commissioners who had taken the statutory oath. No complaint is here made of the fairness of the instant trial or of any partiality or prejudice of the jury. The trial court might under the circumstances have directed the sheriff to summon jurors without their being drawn.

We think the matters stated in appellant's motion did not demand that the panel be quashed, and that it is not here disclosed that the method of selecting this jury was such as would require a reversal of this case, and the judgment of the trial court will be affirmed.

Affirmed.

ON REHEARING. April 20, 1921.