Highsaw v. State ( 1921 )

Conviction is for perjury. The judgment must be reversed and the prosecution dismissed because the indictment is wanting in an essential requisite in that there is no sufficient averment charging the materiality of the alleged false testimony. The indictment is not in any material sense different from that before the court in the case of Bell v. State, 75 Tex. Crim. 401, 171 S.W. Rep., 239 and Scott v. State, 75 Tex. Crim. 396, 171 S.W. Rep., 243.

The motion to quash the indictment was overruled. As we understand the record, it was shown that the grand jury was composed of fourteen persons. In the Constitution, it is said:

"Grand and petit juries in the district courts shall be composed of twelve men; but nine members of a grand jury shall be a quorum to transact business and present bills." (Art. 5, Sec. 13.)

A grand jury otherwise composed has been uniformly declared by this court to be void. Lott v. State, 18 Texas Crim. App. 627; Ogle v. State, 43 Tex.Crim. Rep.; Harris' Texas Constitution, page 435. If the indictment against the appellant was returned by a grand jury composed of more than twelve men (and such we understand to be a fact as disclosed by the record) it is void. Ex parte Reynolds, 35 Tex.Crim. Rep..

The judgment is reversed and the prosecution ordered dismissed.

Dismissed.