*1 requires re- statute is that that the oath of office be said might court, minutes of corded order that there permanent only special judge evidence took exist permanent the oath of office but also evidence of oath that actually taken. any suggestion oppor- injury, In the absence of of an tunity of the attack of the oath accused to form desired, of office if he so we are unable to conclude require- entry time of oath office in minutes was ment of the statute. power special judge neces- over case does not may,

sarily adjournment aat cease with the of the term. He subsequent term, judgment pro case. nunc tunc the enter Pennington judge Moreover, special App. v. 44. Tex. power regular has all could could have or exercise. Art. Sec. R. C. S. V.

Here, therefore, special judge authority, was not without adjournment of the to order the oath of office after the recorded term of court at which was tried. the case affirming

Believing that a correct was reached in conclusion below, judgment rehearing by appellant is motion for overruled.

Opinion approved the court.

Juan v. State. Garza 26,393. May No. Rehearing 21, 1953. Denied October Rehearing Appellant’s Motion for Second (Without Opinion) Denied Written 11, 1953. November *2 Roy Scott, Corpus A. Fagan, Christi, appel- and Robert for lant.

Wesley Dice, Attorney, Austin, State’s for state. Judge.

WOODLEY, The Garza; conviction is for the murder one Andres

punishment, years penitentiary. According witnesses, appellant’s to the state’s father and co-indictee, Jorge Garza, Espirio pipe struck one Rios with a blackjack. or Then one Isaac Camacho struck the deceased An- dres Garza Thereupon his hand. Manuel Garza told his brother, deceased, get way out of the and he would take place, his which he did. fights

While the progress, appellant two ran to the deceased long knife, stabbed him with a bladed and then stabbed Manuel Garza three times before was knocked he out way by Espirio Rios. Andres Garza died as a result stab wound at the hos- pital night. behalf, denied testifying a in his own

Appellant, as witness only for acted and claimed that he he killed the deceased who, defending father purpose and his himself ground help. time, calling claimed that He on scar, exhibited Manuel Garza and in the back stabbed shortly appellant after but the sheriff testified that he examined him mark scratch on “. . . did find a or a the homicide and anywhere”; particularly on back shoul- he looked his scratches, “. . . and didn’t or ders stab wounds or abrasions single place him.” on find a wound or or scratched abrasion charged jury law self-defense defense they acquit of another if believed or and was told to had killed the deceased defense reasonable doubt that he believing father, father was himself that either he or his *3 danger suffering injury losing bodily the of his or life Garza, Espirio hands and Manuel of the deceased Rios Andres Garza, or either of them. objections charge, appellant com-

There are no to the but plains charge requested In No. 1 refused. ab- the charge showing requested sence of a special before this charge jury, the of the court had read the reversible C.C.P.; State, error is not shown. See v. 91 Art. 659 Norman 486, Rep. 976; Tex. Cr. 239 91 Tex. Crane v. Cr. S.W. 304, Rep. 240 S.W. 920. overruling Exception ap- Bill complains of No. 1 of of pellant’s quash special motion to venire and summons a new venire, Exception complaints and Bill 2 of the refusal of No. return, require to file an amended court to the sheriff present return, copy and to counsel with of the amended and a delay the trial for one full after the amended return had been filed. capital pending

This case and another in the same court case Í952, provi- 13, were set and under the for trial for October special drawn sions Art. 590 a venire ordered V.A.C.C.P. drawing question for the two cases. No is raised as to venire, complaint Exception and Bills raised relating and the sheriff’s - return thereon. The list thereon was of veniremen with sheriff’s return motions, appellant’s, offered in evidence connection with testimony heard on transcript of the is not found exception, elsewhere part of the bills and a motions made the list reporter states (A notation the record. found.) could not be and return contents, showing as to its such return or

In the absence of allegations testimony relegated on the sub- we are ject exception. of the bills of exception: From these sources we find in the bills of appeared on jurors whose names sheriff summoned (except list, person 12 in and the others special venire some deceased) post card. he knew to be two who showing service filed his return such The sheriff made 7, 1952. the district clerk October 1952, capital tried, case was On October other being against postponed case to October reported The veniremen who October and who were not permanently excused, were ordered to return on October 29th trial.

Forty-nine 29th, reported of the 80 veniremen on October appeared. jury before the selection of the 12 others jurors presented 29th Prior three of the doctors’ *4 stating they physically (cid:127)certificates that were not able serve to jurors. juror by as aOn was excused similar excuse another stated, on 13th. two dead. the court As were Appellant jurors that moved attachment be issued for all by agreement counsel, whereupon who had not been excused attorney challenges the district exercised 13 of his on named necessity jurors to avoid the such attachments. be

If our calculation correct for the this accounts entire venire. attendance, are shown in

Where to be the manner require quashed. will not them that the venire be its in provides Since amendment Art. 590 G.C.P. drawing capital venire for all cases set for the same

day, a list of the venire for the to furnished each defen- be already provided by dant “. . . as made and law.” counsel Appellant bond and his with furnished thereon, drawn, with return a long veniremen the sheriff’s list of the complaint, stated, prior to to the trial. His as is directed return, especially the claimed failure of the sheriff to diligence summoned, names of those not note thereon the to required them, the failure summon used and the cause of to as under Art. 598 C.C.P. provides that in Art. 597 C.C.P. its amendment

Since may upon juror verbal each summons veniremen be mailing person . the summons to the named person “. . or officer, by class the address last known to the first list at on the mail, judge may as the of the Court direct.” States United nothing show trial directed that There is personally, summoned nor is shown the veniremen be they summoned mail. did not direct that be If come under the head of first class mail. Postal cards personally or mailed cards to the veniremen served V.A.C.C.P., return show- with Art. 597 accordance compliance so, ing a sufficient he had done the return was Art. 598 V.A.C.C.P. Exception Bills of Nos. 1 and 2 do not conclude that reasons: show reversible error for the appeared (a) names on the list fur- The veniremen whose having summoned, except for appellant’s counsel as nished peremp- and those who were unable to serve were who those appeared state, as challenged by were available torily jurors, and provided Art. “summoned” as (b) veniremen verbally person served in or when sum- when V.A.C.C.P. known “at the address last to such mailed mons mail.” States class United first officer overruling exception relate to court’s bills Other *5 .jurors, challenge certain for cause to setting examination. voir dire forth their each in, passing of the trial error find "no We .: ..which qualification of the upon the calls reversal. find no rever- we the conviction sustains The evidence error. sible judgment is affirmed.

The REHEARING. MOTION FOR

ON Judge. MORRISON, severely to for what he contends

Appellant us task takes says supported that as record. He are statements appellant he received no list venire with the counsel bail, and, appellant accord- The was on return thereon. sheriff’s ing P., upon it is incumbent terms of Article C. C. application to clerk to make or his counsel persons pending case is for a list of the sum- court in which the moned for service. determining must now address ourselves to the task of persons

if a list of the so summoned was on file and available calling day prior to counsel of this case on October 31, 1952. testified that he received the venire list on Oc-

tober He stated further: “Q. you your Yes, And return on October 7th? A. sir.”

Further on he testified: “Q. you . . . have here that all of them were served That all them 1952. A. were notified then. “Q. you notify by mailing How did A. card? Mail- them — ing card, postal yes, them a sir.

“Q. registered No, It was not be mail? A. sir. of them Some person. I served

“Q. you many you Quite person? Do how know served in A. a few.

“Q. Well, many? Oh, hand, how about A. I wouldn’t know off several them. “Q. Well, you guess many you would hazard a on how served personally?" A. About a dozen.

“Q. Yes, About 12 out 80? A. sir. “Q. you by postal Yes, And the rest them served card? A. sir.” *6 in

Much of the confusion case this stems from the fact that with those concerned the trial thereof all of laboring seem to have been misconception present relating under a law to return. sheriff’s the 597, P.,

Prior amendment of Article C. in C. day accused was entitled an to one full to which examine a person. the who had list of been summoned If any veniremen, had unable sheriff to summon number !,then determining the accused did not concern himself with if acceptable unsummoned were to those him. amendment, the accused above is still entitled to

Since practical day, purposes all he must if his full determine acceptable list are to venire him. This all those on is so be- postcard may mail a to the sheriff the last known address cause showing veniremen, fact, make his return this and file complied with the clerk. When is done he this has same many sheriff nor the accused Neither the knows how law. veniremen will receive their notice. ,,of sheriff in case up efforts at bar follow to personally an notice with effort postcard serve those to whom required mailed cards commendable had but not since 597, supra. Hence, of Article amendment the return, “amended” diligence, in which the sheriff set forth his not cannot, therefore, required law and constitute the basis for of this cause. The a reversal had full to examine the venire which which list the sheriff had sum- by mail, present moned is all the law accords him. In showing bar, is case there no as to which manner of case, court directed. In such a we hold that might employ either or both methods set forth in the statute. again exception relating have examined the bills challenge

appellant’s prospective for cause jurors. of certain light holding tested in the When of our in Low v. R. Tex. 2d Cr. S. W. subject challenge. Remaining convinced properly disposed that we of this cause originally, rehearing motion for is overruled.