41 Tex. 189 | Tex. | 1874
The record shows that a different oath was administered to the jury from that prescribed by law. This, as has been decided heretofore, is error, for which the judgment must be reversed. (Arthur v. The State, 3 Tex., 405; Martin v. The State, decided during present term.) Where it does not affirmative appear from the record that a different oath from that prescribed has been administered, it will be presumed in favor of the regularity of the proceeding in the District Court, that the jury were properly sworn. But the oath administered in this case is set forth in the record, and no presumption can be indulged to impeach its verity.
Appellant was indicted for theft, under art. 766 of the Criminal Code, for willfully taking into possession, and
We are also inclined to the opinion the court should have submitted the question of intent to the jury, as asked in the instruction requested by the appellant. But if the evidence before the jmy did not warrant the charge asked, unquestionably, if the evidence which was, as we have said, improperly excluded, had been admitted, it would have
The judgment is reversed and the case remanded.
Reversed and Remanded.