# Ross v. State > Court of Criminal Appeals of Texas · April 19, 1950 · 156 Tex. Crim. 164 URL: https://www.frixlaw.com/law-library/cases/4901945 ## Case - **Full name:** Herman Lee Ross v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** April 19, 1950 - **Citations:** 156 Tex. Crim. 164; 233 S.W.2d 126; 1950 Tex. Crim. App. LEXIS 1497 - **Precedential status:** Published - **Opinion:** Dissent by Graves - **Judges:** Beauchamp, Graves, Hawkins, Woodley - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4901945 ## Opinion text GRAVES, Judge (dissenting): The statutes of Texas relative to the selection of grand jurors are explicit, and such commissioners must possess the following qualifications: “1. Be intelligent citizens of the county and able to read and write. “2. Be qualified jurors and freeholders in the county. “3. Be residents of different portions of the county. “4. Have no suit in said Court which requires the intervention of a jury “5. The same person shall not act as Jury Commissioner more than once in the same year. (Art. 333, Vernon’s Ann. C.C.P., 1948).” These three men shall select sixteen men from different portions of the county as grand jurors, who shall each have the following qualifications: “1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who *168 have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror. “2. He must be a freeholder within the State, or a householder within the county. “3. He must be of sound mind and good moral character. “4. He must be able to read and write. “5. He must not have been convicted of any felony. “6. He must not be under indictment or other legal accusation for theft or of any felony. (Art. 339, Vernon’s Ann. C.C.P., 1948).” The statute makes no further demands relative to such grand jurors other than as above stated. Naught is found in our statutes relative to whom they shall be, nor to the method as to how they shall be listed, nor as to their color or race. It is stipulated herein that no person of the Negro race, save one, for a period of thirty years had served on a grand jury in Galveston County, and the argument follows that one judging the present by the past, the claim is made that such shows a discrimination against the colored race upon the part of jury commissioners in the past and at the present time. In other words, this is trying the present jury commission upon the action of commissioners of the past thirty years and finding the acts of these earlier commissioners conclusive of the discrimination of the present three commissioners. This is ex post facto testimony at least. This record shows the presence of seven Negroes on the trial jury venire and one wonders if such reflects discrimination against appellant’s race. One is' again led to wonder how long will this record of commissioners of the past remain the standard on which a court should decide that such ancient acts of those long since passed from the stage of action as the scales in which a high court would weigh the acts and motives of the present jury commissioners. If due process of law means a fair and impartial trial, enforcement officers should be told how long they should be under a prejudgment of the higher court as having violated the American Common Law, as found not in a statute but in the decisions of the high court of the land. *169 Furthermore, one wonders which ones of our statutes have been repealed by a quasi-legislative authority, as for instance, the statute relative to the appointment of an attorney for a defendant only in a matter charging a capital offense. One wonders again where it is said, either by statute or in common-law decisions, that due process of law depends upon the actions of men for thirty years back. I, therefore, enter my dissent herein upon the belief that this man has received a fair and impartial trial (Lisenba v. California, 314 U.S. 219 -243, 86 L. Ed. 167 , especially p. 180, Headnote 12) and that there has been no unfair discrimination against him shown; that the acts of the past grand jury commissioners are neither conclusive nor persuasive of the acts of the present commissioners in the selection of the grand jury that found the indictment against appellant, nor do I find aught against the fairness of his treatment before this trial jury. It is apparent from the facts herein presented that it would be incredible to believe that any grand jury, no matter of what color composed, could fail to return an indictment against this man for this useless killing. The finding of an indictment alone by this grand jury is the matter at issue, and not the trial upon the merits. I do not think the personnel of this grand jury, nor of the previous grand juries for a long period of time, could have affected the giving of a fair and impartial trial of this appellant before a trial jury on a murder indictment found by any grand jury. Recognizing the futility of a dissent in this cause, nevertheless, my views are herein expressed, based on the conviction that this man has had a fair and impartial trial; that a useless thing would be done by dismissing this indictment, to be again heard by another grand jury composed in some part at least of men of different races. I, therefore, respectfully dissent herein. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4901945. Public record. Not legal advice.