The opinion
ON MOTION FOR REHEARING
GRAVES, Presiding Judge.
In his motion for a rehearing appellant cites us to the case of Herman Lee Ross v. State, (Page 164 of this volume) 233 S.W. (2d) 126 , as decisive of the present case. That case was appealed on the proposition that Ross had been discriminated against in the selection of grand jurors for many years prior to the time of his trial. This matter went to the Supreme Court of the United States on a writ of certiorari and is their Cause No. 600, and is reported in U. S. Sup. Ct., 95 Law Edition Advance Opinions No. 12, dated May 21, 1951, page 662.
*440 It is noted that the Ross case was reversed by virtue of Cassell v. Texas, 154 Tex. Cr. R. 648 , 339 U. S. 282 , 94 L.Ed. 839 , 70 S.Ct. 629 .
It is also noted that in the present case, as shown in our original opinion, there were two persons of the Negro race on the grand jury which indicted McMurrin, and in the original submission and argument of the case before our court no attack was made on the grand jury. The sole proposition at that time in this case related to the fact that the state’s attorneys had challenged peremptorily each Negro presented to them and that, therefore, there was no Negro upon the jury which tried the appellant. As adverted to in our original opinion, the right to challenge peremptorily is the right to reject a juror and not to select one. The accused has no right to select the jury before whom he shall be tried, but he does have the right to reject any juror presented up to the number of peremptory challenges allowed by law. We find no complaint made by the appellant of the unfairness of the jury which tried him. It appears to us that he is only attempting to say to the state what jurors shall be peremptorily challenged. We think this matter has been properly disposed of in the original opinion to which we still adhere.
The motion for rehearing is overruled.