Conrad v. State , 151 Tex. Crim. 462 ( 1948 )

In his motion for a rehearing appellant earnestly insists that in our original disposition of this case we erred in two respects, first, in sustaining the action of the trial court in declining to sustain his motion to quash the jury panel for the term, and second, in declining to sustain his contention that he was tried and convicted at a time when the court was in vacation. It appears from the stipulation in the record that the jurors were selected by the jury commissioners for the July Term of court but was not certified under the hand of the commissioners to be the list drawn by them. Here, we have appellant agreeing that the jurors by whom he was tried and convicted were drawn by a jury commission appointed by the court at the January Term as required by law. The only ground of objection upon which he contends the jury panel should have been quashed is that the list was not certified to by them. We do not regard that part of the statute mandatory but rather directory. If the envelopes were properly indorsed, which we must presume in the absence of any evidence to the contrary, the fact that the jury commissioners failed to certify to the list of jurors selected would be cured by an indorsement on the envelope. See Giebel v. State, 12 S.W. 591 (28 Tex. App. 151[28 Tex. Crim. 151]).

Touching the question of appellant's contention that he was tried while the court was in vacation, it appears from the stipulation that the commissioners court on the 9th day of June, 1947, while in regular session, passed an order extending each term of court to the Saturday preceeding the Monday of the beginning of the succeeding term, which extended the July Term of said court through the month of August. This order, although duly passed, was not entered upon the minutes of the Commissioners Court by the clerk until the 8th day of August, 1947. Appellant was placed on trial on the 19th day of August, 1947, at which time he challenged the legal authority to try him. When the order was passed by the Commissioners Court, it became the judgment of the court while the recording or the transcribing of the order on the minutes was but a ministerial act of the clerk. See Watson et al v. Chappell et al,48 S.W. 624. The recording of the order was merely evidence of what the court actually did relative to the matter under consideration. It was agreed that the order as recorded was the order passed by the Commissioners Court. We think that the failure to enter the order of the Commissioners Court at the June Term at which it was passed could not have injuriously affected his rights, and if error, it was harmless error.

The motion for rehearing is overruled.

Opinion approved by the Court.