| Tex. | Jul 1, 1873
We need notice but one of the errors assigned for reversing this case.
The appellant was indicted for horse stealing in the District Court of Ellis county, and tried before a jury of thirteen men, convicted, and adjudged to suffer imprisonment in the penitentiary for the term of ten years. This is certainly" a very novel irregularity in a Texas court. Article 8007, Paschal’s Digest, declares “that the only mode of trial upon issues of fact in the Disirict Court is by a jury of twelve men, except in certain cases otherwise provided for.”
Similar cases have seldom occurred, but when they have occurred the courts in England and in the different States have expressed a diversity of opinion. In Mississippi a verdict of thirteen jurors was set aside. (Wolf et al. v. Martin, 1 How., 30.) In Tileman et al. v. Allies, 5 Smedes & Marsh., 378, the court refused to allow it as error, that the verdict was rendered by thirteen jurors, but state that if it had been rendered by a less number than twelve it would be void. In Kentucky the court held that the defendant being present, and not objecting when the jury was sworn, could not maintain it as error
The English courts have allowed the last juror sworn to be discharged from the panel, and the trial to proceed, where the mistake is discovered before the jury retired to deliberate. But we think, under our law, there is no room for the courts to speculate upon such irregularity. If the fact is discovered before the verdict is rendered, the cause should be withdrawn from the jury, and a lawful jury impanneled and sworn to try it; or, if the last juror sworn can be pointed out, he may be dismissed from the panel, and the trial proceed before the legally constituted jury. But if more jurors than-the legal number are permitted to deliberate on the verdict, the verdict should, be set aside and a new trial awarded.
The j udgment in this case is reversed and the cause remanded.
Reversed and remanded.