Opinion
No. 19958.
Delivered November 30, 1938. Rehearing Denied January 25, 1939.
Race Discrimination — Indictment — Evidence.
Evidence heard on motion of defendant (a negro) to set aside the indictment on the alleged ground that the negro race had been discriminated against in the selection of the grand jury which returned the indictment, held insufficient to show that the omission to draw any negroes upon the grand jury which indicted defendant was the result of an intentional discrimination against negroes because of their race or color. (Following Walter Ryan v. State, page 140 of this volume.)
Appeal from District Court of San Jacinto County. Hon. W. B. Browder, Judge.
Appeal from conviction for theft; penalty, confinement in penitentiary for two years.
Affirmed.
The opinion states the case.
Wm. McMurrey, of Cold Springs, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is theft; the punishment, confinement in the penitentiary for two years.
No statement of facts is brought forward.
Appellant is a negro. The two bills of exception found in the record relate to the appellant's effort to have the indictment set aside on the alleged ground that the negro race had been discriminated against in the selection of the grand jury which returned the indictment. The court heard the testimony of three witnesses, which was in all things identical with the testimony of the same witnesses as shown in the case of Walter Ryan, Opinion No. 19,959, this day delivered. (Page 140 of this volume.) In that case we reached the conclusion that the evidence failed to show that the omission to draw any negroes upon the grand jury which indicted Ryan was the result of purposeful discrimination against the negroes because of their race or color. Giving effect to such holding, we are constrained to overrule appellant's contention.
The judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.
Appellant, in his motion for a rehearing, insists that we erred in our original opinion in holding that the trial court did not err in overruling his motion to quash the indictment on the grounds that the negro race was discriminated against.
We have again carefully reviewed the record in the light of appellant's motion and remain of the opinion that the case was properly disposed of on original submission. See also Mitchell v. State, 105 S.W.2d , 246.
The motion for a rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.