¶1The offense is rape; the punishment, 50 years.
¶2The prosecutrix lived with her husband on a farm located about 11 miles from Ben Wheeler in Van Zandt County. She testified that on the afternoon in question, while her husband was away, a man whom she positively identified as the appellant came to where she was alone hoeing com in a field and asked her for the time of day; that appellant put a gun to her head, told her to start walking and pointed toward some woods; that she began walking and appellant put the gun to her back; that *557after she had walked some 50 yards appellant told her to stop, undress and lie down; that after she had complied with his demand appellant then got on top of her and had a penetration and sexual intercourse with her while holding the gun close to her head. She testified that appellant then left, that she ran to her home, where she locked the door, pulled the window shades, and when her husband returned an hour and a half later told him what had happened. She further testified that while appellant was assaulting her she was afraid he would kill her and that appellant’s act of intercourse was done against her will and without her consent.
¶3The prosecutrix’s husband, upon being called as a witness by the state, corroborated her testimony relative to her outcry made to him when he arrived home on the evening in question.
¶4Appellant did not testify or offer any evidence in his behalf.
¶5Appellant’s sole contention on appeal is that the court erred in overruling his motion to quash the indictment on the ground of racial discrimination because of the intentional inclusion of members of the Negro race, of which appellant was a member, upon the grand jury which returned the indictment against him.
¶6Under the record as presented, appellant’s contention is not properly before us for review.
¶7There are no formal bills of exception.
¶8Appellant’s motion to quash the indictment appears in the transcript; however, the transcript does not contain an order of the court thereon showing appellant’s exception to the court’s ruling. Such an order and exception are required under Article 760e, V.A.C.C.P., to constitute an informal bill of exception to the court’s action in overruling the motion. Crawford v. State, 165 Tex. Cr. R. 147, 305 S.W. 2d 362, and Johnson v. State, 165 Tex. Cr. R. 563, 310 S.W. 2d 70.
¶9The record does not contain a separate statement of facts of the evidence adduced upon the hearing of appellant’s motion to quash the indictment. Section 6 of Article 759a, V.A.C.C.P., requires that a statement of facts relating to any motion heard in the case shall be filed separate from the facts adduced upon the guilt or innocence of the defendant. The evidence adduced upon the hearing of the motion, not being presented by a separate *558statement of facts, cannot be considered. Pierce v. State, 159 Tex. Cr. R. 504, 265 S.W. 2d 601, and Crawford v. State, supra.
¶10Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.
¶11Opinion approved by the Court.
¶12Concurring
¶13I approve the opinion prepared by Commissioner Dice, but because a constitutional question affecting the validity of the conviction is raised, I would add the following:
¶14Prior to the selection of the jury commission and the empaneling of the grand jury which returned the indictment herein there had been systematic exclusion of Negroes in the selection of grand jurors in Van Zandt County under the holdings of the Supreme Court of the United States in Cassell v. Texas, 94 L.Ed. 839; Hill v. Texas, 86 L. Ed. 1559; and other cases, including the recent decision of this Court in Stoker v. State, 169 Tex. Cr. Rep. 59, 331 S.W. 2d 310.
¶15When the Stoker case was decided an indictment was pending in Van Zandt County against appellant, a Negro, charging him with rape.
¶16For the purpose of complying with the mandate in Stoker v. State, and other cases, and deeming it necessary, District Judge A. A. Dawson appointed a jury commission in Van Zandt County, one of the counties of his district. One of the jury commissioners appointed was a Negro.
¶17The jury commission in turn selected a grand jury panel which included some Negroes who served on the grand jury which returned the indictment upon which appellant was tried and convicted.
¶18Judge Dawson testified that he told the jury commissioners “that we couldn’t any longer operate with them (Negroes) excluded from juries” and that the inclusion of some Negroes was an effort on his part, simply to carry out the mandate of the Court of Criminal Appeals.
¶19If the inclusion of members of his own race in the selection of the grand jury which returned the indictment against appellant *559constitutes racial discrimination under Cassell v. Texas, it was not discrimination against the Negro race of which appellant may complain.
¶20The holding of the Cassell case regarding intentional inclusion should be construed in the light of the circumstances then existing. The Supreme Court had announced a rule by which racial discrimination might be established. The court was pointing out that the intentional inclusion of a Negro for the purpose of evading the rule would not destroy the effect of long continued failure to include Negroes in the selection of jurors.
¶21Cassell v. Texas is not authority for setting aside the indictment herein upon the ground that Negroes were intentionally included.
¶22In Moore v. State (Ark.) 315 S.W. 2d 907, the trial judge positively instructed the jury commissioners to have Negroes on the trial jury list, and instructed the clerk, in preparing the list, to put all the Negro jurors at the top of the list in order that there might be full opportunity, if found qualified and not challenged, for them to serve on the jury. The Supreme Court of Arkansas said: “Thus the trial judge took every precaution to see that there were Negroes on the trial jury list in this case; and the record — instead of showing studied evasion — shows a deliberate attempt by the trial court in this case to fully comply with the rulings of the United States Supreme Court which condemns racial exclusion.” The United States Supreme Court denied certiorari. Moore v. Arkansas, 358 U.S. 946, 79 S. Ct. 356, 3 L.Ed. 2d 353.