Pena v. State ( 1929 )

The showing made in bill of exception number one is sufficient to bring appellant within the purview of the law permitting an attack to be made on the indictment at the time and in the manner here appearing.

So far as the legal question is concerned it is entirely immaterial that one set of jury commissioners was appointed by a special judge, and that the orders setting aside the work performed by them were made by the regular judge and that other jury commissioners were then appointed by him. All of these matters occurred at the same term of court. The point presented seems really to turn upon the extent to which a judge has control over his orders and judgments during the term of court at which made. The general rule is stated in Vol. 34, Corpus Juris, page 207, Sec. 436, as follows:

"A court has full control over its orders or judgments during the term at which they are made, and may, upon sufficient cause shown, in the exercise of its sound discretion, amend, correct, revise, supplement, open or vacate such judgments."

Many civil cases and some criminal cases from our own state are collated in the notes under the text quoted. The principle has been recognized and applied by this court in cases even where motion for new trial has been overruled and notice of appeal given, but subsequently at the same term of court those orders have been vacated and a new trial granted. Reeves v. State, 4 S.W.2d 50; Bankston v. State, 80 Tex.Crim. R., 192 S.W. 1064; Bundick v. State, 59 Tex.Crim. R., 127 S.W. 543. In the case last cited the rule is thus announced.

"During the term of the court at which any judgment has been entered or motion acted upon, the court still has power, during the term, over all of its proceedings, and may correct and reform or set aside any judgment or action of the court had during the term."

The presumption is that both judges were acting in good faith at all times regarding the matter, in the absence of any showing to the contrary. What moved the regular judge to set aside the work of the first jury commissioners? The answer is found in the record. In the vacating order appears the following recital.

"* * * but it further appearing that said jury commissioners overlooked or failed to select a special venire list as required by article 593 of the Code of Criminal Procedure, and it further appearing that in cause number 1798 the State of Texas v. Secondino Rodriquez charged with the offense of murder the question of race discrimination has been raised by the attorneys for the defense in that the defendant is a Mexican, and that no Mexicans had been selected by the former jury commissioners as jurors for the present term of this court and by reason thereof no Mexican jurors are summoned on the special venires, and it further appearing that there are a number of other Mexicans under indictment who might also raise the same question of discrimination when their cases shall be called at the next term of this court, and that the matter of selecting or considering Mexicans for jurors has been heretofore over-looked who are qualified for and subject to jury service, if selected, and that it would be advisable for the jury commissioners to consider the selection of Mexicans as jurors when selecting the juries for the next regular term of this court, it is therefore ordered, adjudged and decreed by the court that the lists of the Grand and Petit Jurors as selected by the Jury Commissioners hereinbefore named be and they are hereby vacated, set aside and held for nought, as is also the order of the court or judge approving the report of the said jury commissioners, and that the Clerk of this Court be ordered to disregard said Jury lists when giving over to the Sheriff of this County the lists of Jurors to be summoned for the next regular term of this court."

The regular judge gave the following evidence upon a hearing of the motion to set aside the indictment.

"* * * The Jury Commissioners appointed by me on December 21, 1926, were appointed during the same term of the District Court of Bee County that convened on November 1, 1926. My custom has always been to appoint my Jury Commissioners the last week of the term of Court so that I may know better what may be needed for the next term. It is a fact that pending business then on the docket and what business may present itself during the interval between the adjournment of that term of Court and the convening of the next term of Court is taken into consideration by the Court when Jury Commissioners are appointed. I called the Clerk and found that no venire list had been given to him by the Jury Commissioners who were appointed by Special Judge Chambliss. The Court judicially knows that the Statute provides for this special venire list and Judge Blanton who assisted Mr. Malone, while Mr. Malone was District Attorney in the prosecution of the case of Secondino Rodriquez, after they had agreed with the attorney for the defense to continue that case, rose up before the bar and asked me if I had appointed my jury commissioners and I told him, 'No,' and then he said he would make it a suggestion that in view of the fact that Mr. Bonham, the defense lawyer in the Rodriquez case, had raised race discrimination, that I ask my jury commissioners to select Mexicans on the next jury and I told him all right, I would take that into consideration. Yes, I know the Jury Commissioners selected did take into consideration the selection of Mexicans as jurors for the following term of Court, because several of them appeared here as jurors, and I don't remember that any of them qualified as jurors on their voir dire examination."

The indictment returned against appellant was found by the grand jurors selected by the jury commissioners appointed by the regular judge after he had vacated the panels selected by the jury commissioners who had been appointed by the special judge. There is no claim that the acting grand jurors were not ones chosen by the commissioners appointed by the regular judge; indeed the whole complaint is based on the fact that they were chosen by those commissioners. No complaint of injury is made. The sole insistence is that the regular judge had no authority to set aside the panels drawn by the first set of jury commissioners.

Chapter 1, Title 7, C. C. P., embracing Articles 333 to 372 relate to the manner of securing grand jurors and other matters incident to the operation of the grand jury. Article 348 declares that "if there should be a failure from any cause to select and summon a grand jury as herein directed" a grand jury could be empanelled from persons summoned by the sheriff. Under many decisions construing the statutes controlling it has been held that a grand jury could not be secured in the manner pointed out in Article 348 if an arbitrary disregard of the statute was shown which directed the appointment of commissioners at a previous term to select a grand jury. (See Hunter v. State, 108 Tex. Crim. 142,299 S.W. 437 and cases therein cited.) These statutes and authorities are referred to as having some analogy to the question before us, as we have no direct precedent. The evidence of the judge and the recitals in the order vacating the jury panels therefore drawn by the commissioners appointed by the special judge make it apparent that setting them aside could not be characterized as an arbitrary act. If the judge becomes doubtful as to the legality or propriety of an order or judgment entered by him, under the general powers of the court to control its judgments during the term, he may set them aside or correct them as heretofore pointed out. Why should the same right or power be denied under circumstances here appearing? It appears from the record that before vacating the jury panels theretofore drawn the judge had information that the question of race discrimination would be raised. It was in fact raised by appellant in the present case, but not supported. Having information that the issue would be raised, and being doubtful whether the former jury commissioners had discriminated against the Mexican race, was it incumbent on the judge to wait until confronted with the imminent question, knowing the unavoidable delay which must necessarily follow if it then became necessary to set aside the panel, or could he exercise now during the same term the inherent power of the court to vacate the panels and provide by appointment of other commissioners under proper instructions grand and petit jurors not subject to the threatened charge of race discrimination?

Article 2108 Rawle C. S., 1925, reads as follows:

"If from any cause, the jury commissioners should not be appointed at the time prescribed, or should fail to select jurors as required, or should the panels selected be set aside, or the jury lists returned into the court be lost or destroyed, the court shall forthwith proceed to supply a sufficient number of jurors for the term, and when deemed necessary may appoint jury commissioners for that purpose."

It is clear from the foregoing article that if the panels selected by the commissioners appointed by the special judge had been set aside at the succeeding term of court the judge could have availed himself of jury commissioners authorized under said Article 2108 to supply the needed jurors. If the judge foresaw the probable happening of this contingency at the next term of his court, and in order to forestall it acted during the present term while the orders were still under his control it would seem to furnish no just basis for the attack upon the indictment under the facts presented in the present record.

The motion for rehearing is overruled.

Overruled.