Bates v. State

19 Tex. 122 | Tex. | 1857

Wheeler, J.

The law gives the accused the right of having a list of the jurors summoned upon the original venire, served upon him at least one day before the trial is commenced. (Hart. Dig. Art. 488.) The object is to enable him the better to exercise his right of challenge. It is a valuable right, which is not to be denied the accused. It is true, it may be defeated, in whole or in part, by the non-attendance of the jurors; and, doubtless, after their attendance the Court may discharge one or more of them for cause. But it will be readily admitted that the cause which will excuse ought riot to be occasioned by the action of the Court in derogation of the prisoner’s right, but by something over which the Court had no control; as the sickness of the juror, or a member of his family, or some such matter. For such causes the Court might discharge a juror, though the effect should be to prevent the prisoner from selecting him upon his jury. But surely the Court ought not, by its own action, to place the jurors in a situation which itself would constitute an occasion for after-wards discharging them and denying the prisoner the right of selecting his jury from the list furnished him. Especially the Court ought not to discharge the jurors for such a cause after they had been put upon the prisoner and he had actually elected to take them to pass upon his case. The exercise of the power in this instance is deemed scarcely compatible with the right given by the law : for if twelve of the list may be thus disposed of by the Court, so may the whole list be exhausted, and the prisoner’s right would be thereby defeated ; and not by any casualty over which the Court had not control, but by the gratuitous action of the Court itself. Prom this consideration, without adverting to others, we deem it sufficiently apparent that such a practice cannot be maintained ; and are of opinipn that the Court erred in the matter in question. The jurors summoned for this case, ought not to have been charged with the trial of another, until regularly discharged from this ; and if, from inadvertanee, they had been impanneled for the trial of another case, they should, when called in this, have been at once discharged from the consideration of the other case, or the trial should have been postponed until they were discharged.

We deem it unnecessary to pass definitively upon the sufficiency of the indictment. Its sufficiency is at least doubtful, under the rules of the Common Law in .force when it was found : and it will be advisable for the District Attorney to enter a nolle proseguí upon this and prefer a new indictment.

The judgment is reversed and the case remanded.

Reversed and remanded.