text:
    CITY OF MARLIN et al. v. HOLLOWAY et al.
    (No. 5812.)
    (Court of Civil Appeals of Texas. Austin..
    Jan. 31, 1917.)
    1. Nuisance <&wkey;18 — Injunction to Prevent Creation.
    Injunction is a proper remedy to prevent the creation of a nuisance by a municipal corporation.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 49, 50;]
    2. Appeal and Error <&wkey;>1009(2) — Review— Findings of Fact.
    . The evidence being sufficient to sustain the trial court’s findings of faci^ it becomes the. duty of the Court of Appeals to sustain the trial court in such findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3971.]
    3. Nuisance <&wkey;19 — Sewerage Disposal Plant — Injunction.
    Where the sewerage disposal plant which a city proposed to install in a residence section would have given off noxious odors annoying to any normal man, rendering the continued occupancy of nearby homesteads intolerable, and would have facilitated the breeding of flies, the owners of such nearby homesteads were entitled to injunction, preventing the construction and operation of the plant at that place.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 55.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    Suit by J. C. Holloway and others against the City of Marlin and others. From a- judgment granting temporary injunction, defendants appeal.
    Affirmed.
    E. W. Bounds, of Marlin, for appellants. Oltorf & Oltorf, of Marlin, for appellees.
   JENKINS, J.

This is an appeal from a judgment of the district court of Falls county granting a temporary injunction against the city of Marlin, whereby it was restrained from the erection of a sewerage plant, which it was alleged would create a nuisance and inflict irreparable injury upon the plaintiffs in said cause.

It is well settled that injunction is a proper remedy to prevent the creation of a nuisance by a municipal corporation. 29 Cyc. 1180, 1185, 1187, 1188; San Antonio v. Hamilton, 180 S. W. 160; Stark v. Coe, 134 S. W. 373-378; Lowe v. Cemetery Ass’n, 58 Neb. 94, 78 N. W. 488, 46 L. R. A. 237-243; State v. Concordia, 78 Kan. 487, 96 Pac. 487, 20 L. R. A. (N. S.) 1050; Edwards v. Mining Co., 38 Mich. 46, 31 Am. Rep. 301; Peterson v. Santa Rosa, 119 Cal. 391, 51 Pac. 557; Meigs v. Lister, 23 N. J. Eq. 199.

The allegations in the petition of appellees are sufficient, if true, to entitle them to relief by injunction. The trial court, at the request of appellant, filed the following findings of fact and conclusions of law:

“Conclusion of Fact.
“I find from the evidence, consisting of affidavits and parol testimony, that the point selected as the site for the sewage disposal plant, designed for the defendant city of Marlin, and which it is intended shall be operated by said city, is on what is known locally as the International & Great Northern lake property, which lies within the corporate limits of said city of Marlin; that said site is distant 830% feet a little south of west from the house owned and occupied as a homestead by plaintiff J. C. Holloway, on the west side of Williams street; that the home of plaintiff B. G. Ward is situated on the same side of Williams street about 139 feet north of the southwest comer of plaintiff Holloway’s house; that the home of plaintiff J. I>. Oltorf is about 600 feet northeast of said southwest corner of Holloway’s house; that the residence of plaintiff Mrs. S. R. Oltorf is east of that of J. D. Oltorf, in the same block; that the residence property of Mrs. Mary Adams is next to that of plaintiff Ward on the north; that of W. A. Oltorf and C. A. Oltorf is next to that, of Mrs. Adams, the homes and property of some of the other plaintiffs are further up said Williams street towards the public square, and the homes of the remaining plaintiffs are located on streets running west from said Williams street and north of said site upon which the defendants purpose to construct and operate said sewage disposal plant; that the section of the city of Marlin in question is strictly a residence section, plaintiffs, among others, having well-improved, comfortable homes therein; that the se-wage disposal plant designed for the city of Marlin, upon the sewage of said city being emptied therein, would emit foul and obnoxious odors, and attract and facilitate the breeding of flies; that the odors emanating from said plant would reach the homes of plaintiffs Holloway and Ward, and very probably those of the other plaintiffs; that said odors and flies would be disagreeable and annoying, especially to plaintiffs Holloway and Ward, and render the continued occupancy of their homesteads intolerable; that said odors, would be offensive to the physical senses of said plaintiffs, as they would be to any person of normal senses similarly situated, and said plant would create and be a nuisance to said plaintiffs and destroy the comfort of their homes; that offensive odors emanate from all types or systems of sewage disposal plants, except possibly that known as the activated sludge system, which is not the kind designed for the city of Marlin, and which the evidence indicates would not be practicable for a city the size of Marlin; that the evidence does not show that the city of Marlin cannot, either from an engineering or financial standpoint, dispose of its sewage at some other place or places far enough removed from any residence section not to be a nuisance.
“Conclusions of Law.
“I conclude that the defendants have no right to create a nuisance to plaintiffs, and, since I have concluded as a fact that the operation of the sewage disposal plant in question at the point in question would create and be a nuisance to at least some of the plaintiffs, it follows that my conclusion of law is that plaintiffs are entitled to prevent by injunction the construction and operation of said plant at said place.”

The evidence is sufficient to sustain the court’s findings of fact, and it therefore becomes our duty to sustain the court in such findings. Wells Fargo Co. v. Guilheim, 169 S. W. 1053; Lodge v. Cole, 62 Tex. Civ. App. 500, 131 S. W. 1180.

The court deduced the correct conclusion of law from the facts found.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
      (&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: YANTIS, J.

license: Public Domain

text:
    CHICAGO, R. I. & G. RY. CO. v. DE BORD.
    (No. 2461.)
    (Supreme Court of Texas.
    March 7, 1917.)
    1.Commerce i&wkey;8(6) — Railroads—Injury to Servant — AssumetioN of Risk.
    Where a brakeman was injured while engaged in interstate commerce, and both employer and employs knew of the danger, the case was governed by common-law doctrine of assumption of risk, and not by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6645, abolishing this defense where the employer knew of the danger.
    2.Master and Servant (&wkey;217(l) — Liability for Servant’s Injury — Assumption of Risk — Common-Law Doctrine.
    Under the common law, employe in a negligence suit does not assume any risks arising from employer’s negligence of which he had no knowledge, but does assume such) risks of which he has knowledge.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 574.]
    3.Commerce <&wkey;27(5) — Federal Employers’ Liability Act — Nature of Employment.
    Where plaintiff brakeman was assisting in placing coal car upon elevated tracks leading to employer’s coal chutes when injured, he was then engaged in interstate commerce, or in work closely related to interstate commerce, and his action was one triable under the federal Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665).
    4. Commerce &wkey;8(6) — Regulation — Exercise of Power by Congress. ■ Federal Employers’ Liability Act, § 4 (U.
    5. Comp. St. 1913, § 8660), eliminating assumption of risk defense, where injury was caused by or contributed to by employer’s violation of any statute enacted for employe’s safety, excludes state legislation on the same subject.
    5.Commerce <&wkey;S(l) — Regulation — Exercise of Power by Congress.
    Where a federal law has occupied the field on a question of interstate commerce, all state laws relating thereto must yield.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5.]
    6.Master and Servant &wkey;>204(2) — Federal Employers’ Liability Act — Construction —Assumption of Risk.
    Federal Employers’. Liability Act, § 4, eliminating assumption of risk defense where the injury was caused by or contributed to by employer’s violation of a statute enacted for employe’s safety, indicates legislative intent that in all other cases such defense shall have its common-law effect as a complete bar to the action. '
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 545.]
    7. Appeal and Error <&wkey;882(12) — Invited Error — Requests to Charge.
    Special requests to charge on doctrine of assumption of risk held not to invite the court to charge the subject of assumed risk under state law instead of federal law, so as to waive the right to object to court’s charge and to have case tried under federal doctrine.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3602.]
    8. Appeal and Error &wkey;>882(12), — Invited Error — Request to Charge.
    Where a party requests a special charge and the court refuses it, but gives the same proposition in its main charge, the one offering the special charge cannot complain of error thereby induced.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3602.]
    9. Appeal and Error <§=»750(6) — Review of Federal Question.
    Where defendant in personal injury case alleged and testified to facts constituting interstate commerce, and assigned error on court’s refusal to give special charge on assumption of risk under federal doctrine, held that the federal question was sufficiently raised, without direct allegation setting up federal Employers’ Liability Act, to warrant its review on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3078.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by Rolla De Bord against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals (146 S. W. 667), which • affirmed the judgment, and defendant brings error.
    Reversed and remanded.
    Hiram Glass, of Austin, N. H. Lassiter and Robt. Harrison, both of Ft. Worth, and Turner & Wharton, of Amarillo, for plaintiff in error. Williams & Stedman, of Austin, and C. B. Reeder and J. B. Dooley, both of Amarillo, for defendant in error.
   YANTIS, J.

The defendant in error, Rolla De Bord, recovered a judgment for personal injuries in the district court of Potter county, Tex., against the Chicago, Rock Island & Gulf Railway Company, plaintiff in error. 1-Ie alleged that on December 23, 1908, he was in the employ of the plaintiff in error as a brakeman, running and working upon its freight trains operated between Amarillo, in Potter county, Tex., and Sayre, Okl., and on said date, in the town of McLean, Tex., while in the performance of his duties in the course of his employment, and while attempting to place a car of coal upon an elevated track leading to defendant’s coal chutes at said place he was seriously and permanently injured by tbe negligence of the defendant, its agents and servants. His petition contained two specific grounds of negligence, one of which was to the effect that the plaintiff in error had erected its coal chutes at McLean, Tex., along the line of its main track, and which were designed to be used in coaling engines by emptying coal placed in said chutes directly into the coal bins upon the tenders of its engines by means of trapdoors, and that said coal chutes and track leading thereto were negligently constructed in that said track and coal bins were in such close proximity to each other that there was no room between the sides of said cars and the engines and tenders upon such tracks, and the sides of the coal bins for tbe safe passage between them of the body of a person riding upon the sides of such cars or tenders and engines, where it was necessary to ride and loe stationed to uncouple and Iiold the ear, in placing such car in position for being unloaded upon such coal chutes. The other specific ground of negligence alleged was that the engineer, who was operating the engine while the plaintiff was upon the side of the tender where he was ordered by the conductor to be, assisting in the work within the scope of his employment, refused to obey a stop signal which defendant in error gave, and recklessly and negligently permitted the continued movement of said car of coal and the tender and engine, so that the car was propelled and pushed much farther along the track of said coal chutes than it should have been, and beyond the proper place for stopping the same, and caused the injuries complained of. The judgment in favor of the defendant in error was affirmed by the Court of Civil Appeals, 146 S. W. 867. This court granted a writ of eiTor on the petition of the plaintiff in error.

Complaint is made by the plaintiff in error that the jury was misdirected in paragraph 8 of the court’s charge, which paragraph is as follows:

“When the plaintiff entered the employment of the defendant company as a brakeman, he assumed all the risks ordinarily incident to that particular position, and he also assumed the risks which were known to him, or that he should discover in the proper discharge of his duties as brakeman. But the plaintiff did not assume any risks or dangers caused by the negligence of the defendant. Now, therefore, if you believe from the evidence that plaintiff was injured as alleged 'by him, and that such injury was one that resulted directly and proximately from the risk which was ordinarily incident to the employment plaintiff was engaged in, or was a risk which was known to the plaintiff, or that he should have discovered, in the exercise of ordinary care, in the discharge of his said duties, and that the same was not caused by the negligence of the defendant, then you will find for the defendant and return your verdict accordingly.”

The criticism made by the plaintiff in error is in that portion of the charge which directs the jury, “but the plaintiff did not assume any risks or dangers caused by the negligence of the defendant.” The rule is too well settled to require the citation of authorities that under the common-law doctrine of assumed risk the plaintiff in a negligence suit does not assume any risks or dangers arising from the negligence of the defendant of which he has no knowledge; but it is equally well settled that at common law the plaintiff does assume the risks and dangers caused by the negligence of which he did have prior knowledge. There was evidence introduced to the effect that ■ the plaintiff in this case had actual knowledge, long prior to the accident, of the alleged negligent construction of the coal bins and track. It follows that if the case is to be governed by the common-law doctrine of assumed risk, the charge waé erroneous, for the reason that under the common-law doctrine the defendant in error did assume the risks and dangers arising from the negligence of the defendant of which he had knowledge, while the court’s charge was quite to the reverse.

If the case is one to be tried under the state law the court’s charge was not erroneous, for the reason that the undisputed evidence shows that the defendant in error’s employer had knowledge of the defect in construction, and where this is true, under article 6645, Vernon’s Say les’ Texas Civil Statutes, assumed risk is not a defense. We are of opinion that the common-law doctrine of assumed risk controls, and that the state statute on the subject should not be given effect. Under the pleadings of the defendant in error, sustained by his evidence, at the time of his injury he was engaged in interstate commerce, or in work so closely related to interstate commerce as to be practically a part of it. This being true, the case is one to be tried under the act of Congress known as the federal Employers’ Biability Act. Section 4 of said act provides that in any action brought by an employé he—

“shall not be held to have assumed the risks of his employment in any ease where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.”

It is clear to us that by this act Congress occupied the field of assumed risk, and that such law would govern in this case to the exclusion of the rule announced by the Texas statutes to be applied in cases of assumed risk. The rule that a state law must yield when a federal law has occupied the field on a question of interstate commerce is universally recognized, and of its correctness there can be no question; the federal Constitution having authorized Congress to act. It has been held by the United States Supreme Court that the common-law doctrine of assumed risk applies in cases where the employé at the time of the injury is engaged in interstate transportation, or in work so closely related to it as to be practically a part of it. Shanks v. Delaware, Lack. & West. Ry., 239 U. S. 556-558, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797, and cases cited. The .United States Supreme Court in the case of Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, in discussing the federal Employers’ Liability Act, said:

“It seems to us that section 4, in eliminating the defense of assumption of risk in the eases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action.”

There was no evidence that the plaintiff in error had violated any statute enacted for the safety of employés, and hence the doctrine of assumed risk, under the act of Congress, constitutes a complete bar, so far as that ground of negligence is concerned, which alleges the negligent construction of the coal chute bins and the track, if the evidence was conclusive that the defendant in error had actual prior knowledge of such defect in construction. Of course, it does not bar a recovery in favor of the defendant in error on the other ground of negligence alleged.

We think the court’s charge was affirmatively erroneous and subject to the criticism leveled against it. The error is accentuated in the fact that the plaintiff in error requested by its special charge No. 6 that if the defendant in error knew of such defects in construction, the jury should find on such issue for the plaintiff in error, which charge was refused.

But it is insisted by able counsel for the defendant in error that the plaintiff in error waived the right to have the case tried under the common-law doctrine of assumed risk, as provided in section 4 of the federal Employers’ Liability Act, and invited the court to try the question of assumed risk under the Texas statute governing that subject. This contention rests on a portion of the plaintiff in error’s special charge No. S, which is on the subject of assumed risk, and which instructs the jury that if they believe the injury to plaintiff was the result of the dangerous proximity of the coal chutes, bins, and tracks to each other, “and if you further find and believe from the evidence that a person of ordinary prudence, under same or similar circumstances, would not have continued in the service with the knowledge, if any, of such defect, risk, or danger, if any, then your verdict will be for the defendant, Chicago, Bock Island & Gulf Bailway Company,” which language quoted is very similar to, and probably extracted in the main from, one subdivision of the article of our state statute on the subject of assumed risk.

The contention is further based upon the fact that several special charges were requested by the plaintiff in error on the subject of contributory negligence, each of which made contributory negligence a complete defense, which was the state law at the time the injuries were inflicted upon the plaintiff, whereas the federal Employers’ Liability Act did not constitute contributory negligence a complete defense, but only that it might be ground for the jury to reduce the amount of the recovery.

We do not think any of these special charges should be held as inviting the trial court to charge the state law on assumed risk, instead of the federal law. It is true that where a party to a suit requests a'special charge and the court refuses it, but in its main charge gives the same proposition of law that was employed in the refused requested charge, there can be no complaint by the one offering the special charge, for the reason that the trial court is presumed to have adopted the proposition suggested, and the party making the request would be estopped from complaining. M., K. & T. Ry. Co. v. Eyer, 96 Tex. 74, 70 S. W. 529; I. & G. N. Ry. Co. v. Sein, 89 Tex. 66, 33 S. W. 215, 558. We do not think the court’s charge complained of adopted the proposition of law requested in any of the special charges. Upon the contrary, the court’s charge on assumed risk, as herein quoted, is not an attempt to adopt the state law on the question of assumed risk, but is an attempt to charge the common law instead.

Where the pleading is sufficient to admit evidence to the effect that the defendant in error is engaged in interstate commerce at the time the injuries were received, or in work so closely related to interstate commerce as necessarily to be a part of it, and where the evidence is sufficient to require the conclusion that the defendant was so engaged, the federal question is sufficiently raised and .presented, without a direct allegation being also made setting up the federal Employers’ Liability Act. It is not necessary to plead the law, but when the pleading is sufficient to admit the evidence, upon its introduction, the duty of the court arises to apply the law. We, therefore, overrule the contention of the defendant in error that the federal question was not sufficiently raised in the trial court to be considered here. The defendant in error himself alleged the facts constituting interstate commerce. Likewise, he testified to such facts. The plaintiff in error requested a special charge on the question of assumed risk which applied the common-law doctrine, which is the rule of law fixed by section 4 of said act. It assigned error in the trial court on the refusal to give said charge, and preserved said assignment throughout the appeal. We cannot concur with the view, upon this question, of the defendant in error. The question has been decided by the United States Supreme Court adversely to the contention of the defendant in error. Osborne v. Gray, 241 U. S. 19, 36 Sup. Ct. 486, 60 L. Ed. 865; Cincinnati, N. O. & T. P. Ry. Co. v. Tucker, 168 Ky. 144, 181 S. W. 942, and cases there cited.

We do not deem it necessary to pass on the questions not covered by our views herein stated, as they will not likely arise upon another trial.

The judgments of the district court and of the Court of Civil Appeals are reversed, and the cause remanded to the district court.
      <SmoEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    BOWMAN v. STATE.
    (No. 4362.)
    (Court of Criminal Appeals of Texas.
    Feb. 21, 1917.)
    Criminal Law &wkey;>814(6, 8,9)—Trial—Fail-ure to Submit Issues.
    In a prosecution for an aggravated assault, where the defense, as developed by defendant’s testimony, raised an issue of fact as to whether she struck the blow by accident or intentionally, the court’s failure to submit the issues of accident and intent to injure, when properly re-guested, was erroneous.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1979.]
    Appeal from Haskell County. Court; A. J. Smith, Judge.
    Mattie Bowman was convicted of aggravated assault, and she appeals.
    Judgment reversed, and cause remanded.
    E. B.'Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for an aggravated assault, with the punishment assessed at a fine of $25.

Prom the state’s standpoint the facts show that the alleged injured party, Choice Woods, and appellant’s son, George Bowman, two boys, were in a fight; that the mother of each of them went to the place of the difficulty and engaged in some words; that during the difficulty George Bowman had a baseball bat in his hands, and Choice Woods had a brickbat; that when their mothers appeared Choice Woods dropped the brickbat, and appellant took the baseball bat away from her son, and while the two mothers were engaged in a controversy the boys began to fight again, at first with their fists, and George Bowman picked up a stick, Mrs. Woods interfered, and the appellant struck Choice Woods on the head with the baseball bat, knocking him down and causing blood to flow.

The appellant testified as follows:

“We began quarreling, and while we were, Choice drew back Ms brick and told George that he would kill him, and Mrs. Woods grabbed my boy at the back of the neck and was choking him. She was between me and my boy, and also nearly between me and her boy. I reached out to grab her boy, Choice, to keep him from hitting my son. I was afraid he would hit him with the brick and hurt him badly. I was scared and excited, and had forgotten that I had the bat in my hand. When I reached out to grab the Woods boy, I did not realize that I had the bat in my hand until it was too late to prevent it hitting him on the head. I had to reach around and a little over Mrs. Woods to reach Choice and grab him, and was not conscious that the bat was in my hand until I saw it descending on the boy’s head. I did not intend to hit him at all. I would not have hit him intentionally for anything. I was holding the bat in my right hand about half way of the bat, and when I reached out to grab the boy the bat was in that hand, and X struck him involuntarily and accidentally. The Woods boy staggered and sank down; then got up and went home. The lick I struck was a light one. The moment I saw the bat, as I reached out, X tried to stop the lick, but the bat in my hand had gone too far out of balance towards the boy for me to stop it; the lick was light.”

The court gave a general charge, but did not submit the issue of accident or unintentional injury. Exception was duly reserved to the charge upon this account, and further on the ground that the issue of intent to injure should have been submitted in the charge. A special charge was requested, refused, and exception duly reserved, in which the court was requested to instruct the jury that before a conviction would be authorized they must believe from the evidence that the violence was intentionally committed, with an intent to injure.

The Penal Code (article 1009) expressly provides that accident or innocent intention would be a defense, and it has been held by this court in a number of cases that, if the evidence raise an issue that the injury was accidental or unintentional, it is error to refuse to charge the jury upon that issue. Carrel v. State, 178 S. W. 331; Owens v. State, 62 Tex. Cr. R. 129, 136 S. W. 1057; Menach v. State, 97 S. W. 503; Calhoun v. State, 71 S. W. 279. It has also been held that, where an intent to injure is a vital issue in the case, it is error to refuse to give instructions affirmatively submitting the defensive theory. Warner v. State, 74 Tex. Cr. R. 209, 167 S. W. 1109; Calliham v. State, 67 Tex. Cr. R. 658, 150 S. W. 617; Perkins v. State, 62 Tex. Cr. R. 508, 138 S. W. 133; 2 Branch’s Ann. I-’en. Code, p. 914, and cases cited.

The defense in this case, as developed by the appellant’s testimony, raised an issue of fact as to whether she struck the blow which injured Choice Woods by accident or intentionally, and her testimony that the blow which injured the boy was given by accident made it incumbent upon the court, when properly requested, to give a charge submitting the issues of accident and intent to injure.

On account of the failure of the court to submit these issues on request of the appellant, we find it necessary to order that the judgment of the lower court be reversed, and the cause remanded.
      <&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J. PRENDERGAST, J.

text:
    HOWARD v. STATE.
    (No. 4332.)
    (Court of Criminal Appeals of Texas.
    Feb. 21, 1917.)
    1. Juky <&wkey;148(2) — Oath — Necessity in Criminal Case.
    Code Cr. Proc. 1911, art. 714, requiring a prescribed oath to be administered to the jury in felony cases, is not complied with by swearing the entire jury panel at the beginning of the week pursuant to Rev. St. art. 5213.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 642.]
    2. Jury <&wkey;33(4) — Trial by Unsworn Jury. • A trial of a murder case by 12 unsworn
    m6n violates defendant’s constitutional right to a jury trial.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 230.]
    3. Constitutional Law <&wkey;267 — Due Process — Jury Trial.
    Trial of a murder case by an unsworn jury is a denial of due process of law.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 754.]

      4. Criminal Law <&wkey;1144(8) — Review — Swearing Jury.
    The presumption created by Code Or. Proc. 1911, art. 938, providing the appellate court shall presume the jury was properly impaneled and sworn, is overcome where the contrary is conceded by the trial court and proved by the sworn statements of the individual jurors.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2758-2760, 2901, 3023, 3024.]
    Prendergast, J., dissenting.
    Appeal from District Court, Henderson County; Jno. S. Prince, Judge.
    J. L. Howard was convicted of manslaughter, and appeals.
    Reversed and remanded.
    W. R. Bishop, of Athens, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at five years’ confinement in the penitentiary. The questions with reference to the continuance and argument of prosecuting officer will not be discussed further than to say that upon another trial the attendance of the witnesses may be secured, and in regard to the argument, that will not occur again. We would feel inclined to reverse the case for these reasons, but under the view taken on the other question, those are not further mentioned. As the facts attending the homicide had nothing to do with the swearing of the jury, the evidence will not be recited nor discussed. They have no bearing on the question of swearing the jury.

The main question here discussed is, that the jury was not sworn specifically to try the case. This is shown by the court in his qualification to the bill of exceptions, and by the jurymen who tried the case and is conceded. It seems the jurors were sworn the first day of the week as prescribed by Civil Statutes, art. 5213, but were not sworn when impaneled to try this particular case. The court in his qualification to the bill of exceptions states, in substance, that the jury was not otherwise sworn, and his attention was privately called to this fact by one of the jurors. The court informed this juror it was not necessary to swear them as a body, as all the jurors had been sworn at the beginning of the week, and such swearing was sufficient We do not understand the trial court to be correct in his statement of the law. Article 714 of the Revised Code of Criminal Procedure thus reads:

“Oath to he Administered to Jurors. — When the jury has been selected, the following oath shall be administered to them by the court, or under its direction: ‘You, and each of you, solemnly swear that in the case of the State of Texas against A. B., the defendant, you will a true verdict render according to the law and the evidence, so help you God.’ ”

Article 5213 of the Civil Statutes does not meet the requirements of article 714, C. C. P. This statute (article 714 C. C. P.) has been frequently before the court, and invariably it has been held that the jury must be sworn in the particular case as prescribed by the statute. Commencing with Arthur v. State, 3 Tex. 403, followed by Bawcom v. State, 41 Tex. 189, it was held that the statutory oath must .be administered; that even a different oath than that prescribed would not be sufficient. Judge Moore, writing the opinion for the Supreme Court in Bawcom Case, said:

“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. State, 3 Tex. 405; Martin v. State [40 Tex. 19], decided during present term. Where it does not affirmatively 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.”

In the same volume (41 Tex. at page 501), in the Edmondson Case, Judge Gould, writing for the Supreme Court, said:

“We will call attention, however, to one other irregularity, with the view of having its repetition guarded against. The record recites that the jury were ‘sworn to well and truly try the issue joined between the state of Texas and Luke Edmondson.’ This is not the oath required by law to be administered. If the record assumes to set forth the oath, it should do it correctly. _ It is sufficient, however, if it states that the jury were sworn ‘according to law,’ without attempting to set out the oath, and that, we think, is the better plan.”

In Smith v. State, 1 Tex. App. at page 414, it is said:

“The objection to the oath administered to the jury is well taken. The proper oath to be taken by the jury on the trial of a criminal ease has been prescribed by statute. See Code of Cr. Pro. art. 5G3; Pase. Dig. art. 3029. When the oath required has been prescribed by law, another oath will not answer the purpose intended.
“In Arthur v. State, 3 Tex. 405, it was held that, ‘where the Legislature has undertaken to prescribe the oath which shall be taken, it must be observed, and where the record shows that the statutory requirement has been disregarded, and the court has provided something else in its stead, it will be as if no oath had been administered. . Any other oath than that prescribed is, in contemplation of law, no oath. And it is clear that the finding of a jury not under oath cannot constitute a legal verdict upon which the court can proceed to give judgment.” No rule, it would seem, has been more invariably adhered to than that laid down in the opinion above quoted from — that, where the record shows that the oath prescribed by the statute has been disregarded, and some other oath has been substituted, the oath so substituted will, in felony cases, he regarded as no oath at all. Such has been the uniform decision, both before and since the adoption of the Code of Criminal Procedure. Martin v. State, 40 Tex. 26; Bawcom v. State, 41 Tex. 191; Morgan v. State, 42 Tex. 225; Burch v. State, 43 Tex. 377. These authorities,' it is proper to observe, do not conflict with another class of cases where the record simply shows that the jury was sworn to try the case, but does not attempt to set out the oath, in which it is held that it will be presumed the proper oath had been administered.”

In Leer v. State, 2 Tex. App. 495, at page 496, Presiding Judge Ector said:

“The judgment in this case must be reversed because it appears from the record that another and different oath was administered to the jury than the one prescribed by law. Any other oath than the one prescribed is, in contemplation of law, no oath. If the judgment had recited that the jury were ‘duly sworn,’ or that the jury were ‘sworn according to law,’ it would be sufficient; the court would presume that the proper oath was administered to the jury. But the oath administered in this case is set forth in the record, and ‘no presumption can be indulged to impeach its verity.’ ”

Further quotation might he made from this case, but it is in line with cases already cited.

In Rippey v. State, 29 Tex. App. at page 43, 14 S. W. at page 449, Presiding Judge White of the Court of Appeals said:

“In these latter cases a juror is not impaneled, that is, sworn as a juror to try the case, until the whole jury has been selected and sworn as a body. Code Crim. Proc. art. 657.”

This rule was followed also in Heskew v. State, 17 Tex. App. 161, and in Slaughter v. State, 100 Ga. 327, 28 S. E. 159.

Again, a case directly in point was delivered by Judge Simkins in Stephens v. State, 33 Tex. Cr. R. 101, 25 S. W. 286. The language there is as follows:

“There is but one question in'this case that need bo considered: Was the jury sworn as required by law? The trial judge states that on Monday, the 15th of May, 1893, before this case was called for trial, when the jury for the week was being impaneled, the court administered to all the jurors for that week% including all the jurors who tried the case, the oath prescribed by article 3099 of the Revised Statutes for jurors in civil cases, and no other oath was administered to them; in other words, the jurors who were selected and tried this case were not sworn • as required by article 657 of the Code of Criminal Procedure. That article is now 714, O. C. P. The clear intention of the Code is that a jury selected to try a defendant on a criminal charge shall be sworn in the specific case, and under the oath prescribed, and no other. Willson’s Crim. Stats. § 2289.” The oath testing them on each Monday is not sufficient. “Then only can a jury be said to be ‘impaneled in the case.’ Rippey’s Case, 29 Tex. App. 43 [14 S. W. 448].” The oath administered on each Monday is not sufficient and has never been. “In all cases less than capital, jurors are not impaneled until selected and sworn as a body [in the particular case]. Rippey’s Case, supra; Heskew’s Case, 17 Tex. App. 161; Ellison’s Case, 12 Tex. App. 557. This is fatal to the conviction.”

It would he more difficult to reconcile the action of the trial court with the prescribed statutory regulation and requirements and decisions quoted, and sustain this conviction because of a presumed waiver. The qualification of the judge does not show a waiver by defendant, nor does the court say he waived the necessary oath. He was not even requested so to do, nor was it even called to his attention by the court. We are cited, however, to the case of Caldwell v. State, 12 Tex. App. 315. That was a death penalty case. Judge Hurt delivered the opinion. That opinion shows, in substance, that the oath was not administered to each individual juror as selected. The statute provides this ought to be done, but that opinion discloses, and it is the basis of the opinion, that when the jurors had all been selected, the oath was administered to them as a body. Judge Hurt held that this was such an irregularity as would not require a reversal, but places it upon the ground that the jury was sworn to try that particular case. That jury was not an unsworn body of 12 men as in the present case. Conceding the correctness of Judge Hurt’s opinion in the Caldwell Case, it would not be analogous to this case, nor have any bearing upon it, because in that case the jury were sworn to try the accused in that case. The verdict was a verdict of a sworn jury. In the instant case, however, there was no pretense that an oath was administered to the jury who tried the defendant, and the court concedes, and all the testimony showed, it was not so administered.

It has been the law in Texas both by Constitution and statute that an accused is entitled to a trial by a jury. It has not been held, so far as we have been able to discover, that a jury could possibly be a jury until it had been sworn to try the particular case. It is not a trial by jury, for, as Judge Simkins said, a jury cannot be said to be impaneled until it has been sworn. The verdict in this case was by 12 men unsworn to try the issues between the defendant and the state. He was deprived of a constitutional as well as a statutory right. Such oath has been required in all the history of the jurisprudence of this country, and no man’s life, liberty, or property can be taken except by due process of law. A man tried by an unsworn jury -cannot be said to be tried according to the law of the land. The defendant, as provided by statute, cannot waive trial by jury. If it be true that a jury is not a jury to try the case until sworn, as the authorities hold, then appellant was tried by a jury unsworn. But, as before stated, the statute says he cannot waive a jury trial. His desire in the matter would not overturn the law. This is a question about which there has not been any serious discussion, because it is expressly stated, and under all the decisions held, that a defendant cannot waive a trial by jury in a felony case.

We have another statute (article 938, Revised Code of Criminal Procedure), which says:

“The Court of Criminal Appeals may affirm the judgment of the court below, or may reverse and remand for a new trial, or may reverse and dismiss the case, or may reform and correct the judgment, as the law and the nature of the case may require; but, in all cases, the court shall presume that the venue was proven in the court below; that the jury was properly impaneled and sworn; that the defendant was arraigned; that he pleaded to the indictment; that the charge of the court was certified by the judge, and filed by the clerk of the court before it was read to the jury, unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by a bill of exceptions, properly signed and allowed by the judge of the court below, or proven up by bystanders, as is now provided by law, and incorporated in the transcript as required by law.”

Had the record remained silent as to the failure óf the jury to be sworn, this court, under the quoted statute, would presume that the jury was sworn. But whether the judgment recites the fact that the jury was sworn or not, it is subject to attack in the manner provided by statute, and the recitation in the judgment may be overcome by showing that such recitation is not true. Presumption is not conclusive, but it is expressly stated it shall not be conclusive and is subject to attack. It was successfully attacked in this ease in the trial court. The truth of the attack is conceded by the court and approved by the statement under oath of every juror who tried the case, and not only is this true, but the court’s attention was called to it at the beginning of the trial by one of the jurors who notified the judge that the jury had not been sworn. The court informed him that it was not necessary. Whatever may be thought as to the necessity of swearing a jury in the trial of a case, the law has decreed that the jury shall be sworn, and by a prescribed oath and in the particular case it is not sufficient to administer the oath as required by the civil statutes in testing the qualification of jurors at the beginning of the week. That is not the oath required by the statute in the trial of a felony ease. This has been the subject of many decisions and is settled. Quotations have already been made from some of these decisions, running back as far as 3 Texas Supreme Court Reports, all of which lay down the rule that the jury must be sworn as provided by the statute, and not only so, but where the judgment recites that a different form of oath was administered that is not sufficient, even where the jury is sworn in the particular case. This has been the unbroken rule in Texas since the decision of Arthur v. State, supra. We call attention to the fact that Judge Hurt, who wrote the opinion in the Caldwell Case, supra, was on the bench when the Ellison Case, supra, was delivered, and reported in the same volume as the Caldwell Case, and that he was also a member of the court when the Stephens Case, supra, was written. He was also a member of the court when the Rippey and Heskew Cases, supra, were written. It seems not to have occurred to Judge Hurt at any time that the Caldwell Case was in opposition to the long unbroken line of cases; in fact, could not well be antagonistic to those cases because in the Caldwell Case the particular statutory oath was administered to the jurors as a body. Judge Hurt was not passing upon a question involved in the case where the jury was not sworn, but was passing upon a case in which the jury was sworn in accordance with the statute, but which jury had not been singly sworn in accordance with the terms of another article. The defendant in that case was tried by a sworn jury.

The judgment is reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). I am well aware that dissenting opinions are read by very few persons at any time, and that, when written by me, they avail nothing at the time, yet when, after the most thorough investigation and mature deliberation, I see that for a trivial and unimportant omission, which was clearly waived by the appellant at the time, the laws of my country are not declared and enforced, and the substance is made to yield to the mere shadow, and a case is to be reversed whereby the guilty escapes the punishment the law prescribes and which he so justly deserves, I feel it my imperative duty to protest and place on record my earnest dissent.

In determining the question at issue in this case, I think it is of sufficient importance to state the testimony introduced on the trial and the conduct thereof and the result, for the pwnpose of showing that the evidence clearly authorized the jury to find appellant guilty of murder, and to show that he was acquitted of that offense by this jury, sworn only as it was. Besides, it is always necessary to know and see the surroundings, in order to determine the materiality and bearing of the question raised. The question cannot be correctly determined without this. I shall therefore succinctly state all these matters from the record.

Appellant was indicted and tried for the murder of Boss Robertson. The testimony unquestionably raised the issue and was amply sufficient to have sustained a verdict tor murder. Manslaughter was also submitted, and the jury found him of guilty of manslaughter only. This, under the very terms of the statute (article 782, O. G. P.) was an express acquittal for murder, and of course appellant gladly avails himself of this. His sole defense was self-defense from what he alone claimed was apparent danger. All the material facts were proven by un-controverted testimony except those at the immediate time appellant shot and killed deceased. That he shot and killed him was not denied, but admitted, by appellant.

A large number of witnesses testified that appellant’s general reputation was that of a peaceable and law-abiding man. The state in no way contested this. A large number of witnesses also testified that the general reputation of deceased was that of a violent and dangerous man, and that he carried a pistol on his person. Appellant testified he knew all this about deceased before he killed him. However, the testimony further shows that while deceased lived in the same immediate neighborhood in which he was killed for many years, no one ever saw him have a pistol on Ms person, and lie was never convicted for any such offense.

Several witnesses also testified for appellant that deceased had stated to them that he would not he arrested by appellant, and some swore he said he would hill him if appellant attempted to arrest him. These threats testified to covered a period from five or six years before the killing up to within a day or two thereof. The testimony of these witnesses was to the effect that these threats they testified to were directed not *only against appellant personally, but also embraced any and all other officers who should undertake to arrest him. However, within the period of these alleged threats deceased had been arrested some two or three times and at least once, if not twice, by appellant himself, at which times he did not resist arrest, nor did he kill or attempt to kill the officer arresting him. It was testified to that a year or two before the killing a certain deputy sheriff in deceased’s neighborhood had resigned to avoid trouble with deceased in case it became necessary for him to attempt to arrest him. The constable of the precinct where appellant and deceased lived, some months before the killing, had also resigned, expressly to avoid a difficulty with the deceased if he should attempt to arrest him; and appellant knew of both of these resignations and the cause therefor. The appellant had been appointed constable in the place of the one who had shortly before the killing resigned, and was acting as such constable at the time he killed the deceased. At the time he killed him he had a capias or warrant for the arrest of the deceased for a minor misdemeanor alleged to have been committed about a year or a little less before the killing. Deceased knew he had this capias for his arrest, and had told different persons in substance, as they testified, that he would not be arrested by appellant under said capias, and that he would kill him if he attempted to arrest him thereunder; all of which was communicated to and known by appellant at the time he attempted to arrest him when he killed him.

The state’s ease was this:

Mrs. Dalripple swore that before the killing “somebody cut Mr. Howard’s [appellant’s] mule’s tail off, and Mr. Howard said he believed Boss Robertson [deceased] did it, and, if he knew he did, he would just hunt him up and shoot him like he would a yellow dog.” George Gardner swore that Mr. Howard talked to him and said “that Mr. Boss Robertson had cut his mule’s tail off, and he was going to get him, and he ought to be shot through the entrails and let die.” Appellant denied making these threats.

Jim Burns swore that on the morning appellant killed deceased, deceased came by his store and told him he understood appellant had papers for him, and that if he had he was going to make him take Mm to Athens —that he was not going to make bond. .That just at this time he saw appellant coming towards them, and that he called deceased’s attention thereto. That deceased then left him, going to meet appellant, saying: “I am going down the road there, and if he goes to arrest me, I am going to run.” That he (the witness) then watched appellant and deceased and saw the whole affair and the shooting of deceased by appellant. That deceased met appellant and passed him a little piece and “sorter turned around” with his side or face to appellant, when appellant shot him the first time. That deceased then wheeled around to run back the way he had gone with “his hands up over his head," and just as he was passing appellant on his return, appellant fired the second shot. “The last shot entered Boss Robertson’s back, and he was something like four or five or six steps maybe from Mr. Howard when that shot was fired. When the last shot was fired, Boss Robertson’s hands were up over his head, and he fell with his hands over Bis head, and lay that way.”

All the uncontroverted testimony established that appellant shot deceased three times, and shot only three times; that the first shot struck deceased in the stomach, just above the navel, went around, and came out of his right side. The second shot struck him a little below where the first did, and ranged around and came out of Ms left side. Both of these shots were flesh wounds, and neither penetrated the cavity. The third and last shot struck him in the back, near the center thereof, just below the shoulder blades. This ball went in and was -the shot that killed the deceased.

Jim Reece testified that he was in about 100 yards of the parties when the shooting occurred, and that he was the first man to the body of deceased; that he got there just as quick after the shooting as he could run down there. When he got there, deceased was lying flat on his stomach with his hands raised up over his head, his feet straightened out. That just before he got to the body of deceased, he “kinder stopped,” and the deceased called him to come on to him. That he asked him if he was hurt, and he replied, “Yes, he had shot him all to pieces.” He asked him what he shot him for, and he replied: “Eor nothing in God’s world; shot him down just like a dog.”

C. G. Knott, pastor of the Baptist Church, and it seems deceased’s pastor, was called to see deceased before he died. He swore that deceased told him that when he met Mr. Howard, Howard went to shooting. “He said when he first shot he threw up his hands and told him wasn’t any use of that, and he said: ‘After the next shot, I broke to run and Mr. Howard shot me in the back. That shot is what is killing me.’ ”

Dr. Meyers, who was called to see deceased,

“He said: T met him down there in the road.’ I said: ‘Did you have any words?’ He said: T didn’t think of any trouble; didn’t think he was going to shoot me. The first shot I throwed up my hands and said: “My God! Don’t shoot me; I am not armed. He fired the second shot.” ’ When the second shot was fired, then he [Boss Robertson) broke to run — said: T got six or eight feet, and he hit me, and he knocked me down, and I couldn’t run, but I crawled to get away.’ ”

The doctor further swore that deceased did not tell him where his hands were when he broke to run. “He said his hands were up when the second shot was fired.”

Jim Rogers swore that he saw deceased soon after he was shot. That he met Howard coming from deceased when he was going to him, and that Howard asked him to search Robertson’s body for a pistol, and that he did so and found no pistol. It was established by the testimony that deceased had no pistol and no holster on when appellant shot him. Appellant’s attorney, in arguing this case when submitted, stated that it was shown deceased had no pistol when appellant shot him. Rogers further swore that he was about 150 yards from where the shooting-occurred, and got to deceased just as quick as he could walk down there, and that deceased then told him that Mr. Howard shot him without any cause.

This cause has been tried once before. The state proved by Judge Prince, the presiding judge at both trials, that on the first trial appellant swore that he shot deceased in the back because he' thought he was going to get a gun. Also the state proved by Mr. Osborne, one of the jurors on the previous trial, that Mr. Howard swore in substance on that trial that he shot deceased in the back because deceased was going to run and get a gun. Mr. Justice, the county attorney, swore that on the previous trial appellant swore “that he shot the deceased -in the back the last time because he thought he was going off to get a gun, or that he thought he might be going to get a gun.” He stated it in another place thus: Appellant said: “ ‘I shot him in the back, running from me, because he was going after a gun,’ or he thought he was going after a gun; one of the two.”

Appellant’s contention as to the immediate facts of the shooting was testified to by him alone. He said in substance:

That, when he met deceased on this occasion, he spoke to him, “Good morning,” and told him he had a bond he wanted him to fill. That he (appellant) was talking in a louder, more determined way, and as deceased was passing him said: “You hold on there and take this bond.” That deceased told him in bad language what to do with the warrant and “throwed” his hand back that way (towards his hip pocket), and he thought he was going to shoot him, and that appellant thereupon shot the deceased the first time. That deceased turned and started back towards the way he had come, and as he was passing him, threw his hands up as if to grab, appellant, and he shot the second time, and while he said he didn’t know that he shot him in the back the third time, he could not explain why it was he shot him in the back except, in substance, that he was so agitated he didn’t know how he was shooting the deceased, but that ail the shots he fired were in his own defense, and he .thought and believed if he didn’t shoot and kill the deceased, that the deceased would shoot and kill him. He denied that deceased threw up his hands and told him that he was not armed, and denied that he told him not to shoot him again after he shot him the first time. He swore that he thought he saw appellant’s pistol holster, a red looking thing, when he threw his hand back. “I didn’t think that I saw his pistol. I thought his hand covered the pistol. I thought I could see the holster of the pistol.” That all the shooting -was done right together.

On cross-examination, appellant swore:

“Boss Robertson did not keep his hand in his hip pocket all the time he was running towards me. It was all done right now. A man can’t see everything. I don’t think that Boss Robertson had his hand in his hip pocket when I shot the last time. He had taken it out. He just come right at me like he was going to grab me; had his hands up just like he was going to grab me, in a grabbing position. He didn’t have his hands in his hip pocket when he was coming towards me. He had his hand in his hip' pocket when I shot the. first shot, and I don’t know whether he had his hand in his hip pocket when I shot the last shot or not. When I commenced shooting, he throwed his hand right that away (to his hip pocket) and I commenced shooting. He just whirled right that .away and come right towards me. When Boss Robertson run at me he had his hand up in a grabbing position; didn’t have it in his hip pocket. I shot Boss Robertson the last time to keep him from killing me. I didn’t have time to think of nothing else; I didn’t know no more to do only to defend myself; I was fighting for my life.”

A special venire was not called for by either party. Both waived a special venire, and agreed to make up a jury from the regular jury panel for the week, and this was done, as provided by article 696, O. O. P.; that is: The name of each juror was called as his name appeared on the list, he was tried and passed upon separately, but when accepted by both sides was not then individually sworn as required by article 698, O. C. P. It is certain that both appellant and his attorney knew this at the time, and in no way did they, or either of them, then request that the jurors should thus be individually sworn. Nor did they, or either of them, then complain that this was not done. When the 12 jurors who tried this case had each and all been thus selected, they then neither individually took the oath prescribed by said article 698, nor as a whole together did they take the oath prescribed by article 714. Appellant was present and saw and knew that oath was not then administered to the jury, and neither he nor his attorney then asked that this be done, nor did either then cpmplain that this was not done. No juror was selected who was in any way objectionable to appellant.

Judge DAVIDSON in his opinion herein time and again in effect says this jury was never sworn. The record plainly and positively shows the very reverse of this. The jurors made this affidavit:

“We, the jurors who tried the above entitled and numbered cause of the State of Texas v. J, L. Howard, do on our oaths solemnly swear that we were on the jury for the week of said district court beginning on Monday 11,-1916; that on said Monday we were sworn in as jurors for the week, to try all cases that might be submitted to us for the week.”

Appellant’s sworn motion for a new trial so alleges; his bill of exceptions states:

“In the above-entitled and numbered cause and regard thereto the following- proceedings were had, to wit: There was no special venire_ demanded and the jury was selected from the jury for the week beginning September 11, 1916; on Monday, the ilth day of September, 1916, before this case was called for trial, when the jury for the week was being impaneled, the court administered to all the jurors for the week including all the jurors who tried this case, the oath prescribed by article 5213 of the Revised Civil Statutes for jurors in civil cases.”

And the judge in allowing this hill, which was accepted by appellant, so states. His qualification of this bill will be quoted below. It is unnecessary to quote it here. All these documents further show that neither the oath prescribed by said articles 698 nor 714 were administered to them at any time, except in the oath which was administered to them.

When the jury for the week was impaneled the day before this case was called for trial, this oath was administered to each and all of them, including every one who was a juror on the trial of this cause, which is the oath prescribed by article 5213 of the Revised Civil Statutes, to wit:

“You and each of you do solemnly swear that in all cases between parties which shall be to you submitted, you will a true verdict render according- to the law as it may he given to you in charge by the court and the evidence that may be submitted to you under the rulings of the court, so help you God.”

No other oath was administered to this jury.

Our statute (article 698, C. C. P.) requires that, when jurors are selected from a special venire, as each juror is selected, the following oath shall be administered to him:

“You solemnly swear that in the case of the State of Texas against A. B., the defendant, you will a true verdict render, according to the law and the evidence, so help you God.”

And that, in the formation of a jury in other felony cases, when the whole jury has been selected (article 714, G. C. P.) this oath shall be administered to the jury as a whole, to wit:

“You, and each of you, solemnly swear that in the case of the State of Texas against A. B., the defendant, you will a true verdict render according to the law and the evidence, so help you God.”

After the verdict of the jury had been returned, the jury discharged and the trial concluded, appellant for the first time, in his motion for new trial only, sought to take advantage of the fact that the jury had not been sworn as prescribed by our said procedure. The trial judge qualified his bill, which was only to the overruling of his motion for a new trial, as follows:

“The jury that tried this case were selected from the jury for the week; all of the jury had been sworn in as jurors for the week, when impaneled as a jury; and when the first witness was placed on the stand, after the defendant had been arraigned, J. M. Knutson, one of the jurors, called the court’s attention to the fact that the jury had not been sworn to try this ease. The court replied that the jury had been sworn to try all cases, ‘and I do not think it necessary to swear them to try this case, but if the state or the defendant desires it, it can be done.’ I do not know that the defendant or his counsel, though both present, heard this conversation, but I do know that both of them noticed that the jury were not sworn before the jury brought in the verdict. No exception was taken to the jury not being sworn, but the defendant seems to have preferred to raise the question for the first time in a motion for a new trial, and the court has given him his choice.”

Appellant now contends that the judgment should be reversed because the specific oath prescribed by the Code was not administered to the jury instead of the oath which was administered, and cites said articles of our procedure, and Stephens v. State, 33 Tex. Or. R. 101, 25 S. W. 286. I do not hesitate to say that the proper procedure in this case would have been for the court to at least have sworn all the jury, if not each juror individually, to try this specific ease. In the Stephens Case, the question of waiver did not arise. Doubtless, the appellant in that case when the jury was made up must have demanded that the jury be sworn to try that individual case, and the court must have failed or refused to comply with his demand. If that had been done in this case, a different question would be presented.

In the ease of Caldwell v. State, 12 Tex. App. 315, the jury was selected from a special venire, and the court instead of swearing each juror individually as selected, as required by said article 698, waited till all 12 jurors had been selected, and then to all together administered the oath as prescribed by said article 714. As stated by Judge Hurt, who wrote the opinion of the court in that case, the question was first raised by motion for new trial. The whole court, through Judge Hurt, said:

“There was no request made by the defendant to have the jurors sworn as selected, nor did the defendant object to their being sworn in a body. The first complaint is heard in the motion for new trial, and in his motion he does not state that he was not aware of these proceedings at the time they were had. These irregularities are now urged here as a ground for reversal. We are of the opinion that they come too late. If the defendant had demanded that the jurors be sworn as selected, and this demand had been refused, we would have been compelled to reverse the judgment. If an objection to their being, sworn in a body had been interposed, a very nice question would be presented for our decision; but the defendant did neither.
“The question presented is this: Will this court reverse a judgment for these irregularities, when the defendant made no objection at the time, taking his chance of being acquitted by this jury thus sworn, and holding in reserve this matter to be used in his motion for new trial, and, on failure then, to be used in this court as ground for reversal of the judgment? We .think not.”

In that case the death penalty was inflicted, and the case affirmed. This Caldwell Case is precisely in point herein, is the law, and should be decisive against appellant. It has always been held by this court that our statutes regulating the formation of a jury in a capital, or other felony case, are not mandatory, but directory only. Murray v. State, 21 Tex. App. 466, 1 S. W. 522; Jackson v. State, 30 Tex. App. 664, 18 S. W. 643; Roberts v. State, 30 Tex. App. 291, 17 S. W. 450; and a great many other cases.

In my opinion appellant clearly waived the administration to the jury of the oath prescribed by said articles 698 and 714, and accepted in lieu thereof the oath which was taken by the jury, doubtless at the time believing that the oath which was taken was amply sufficient. Lyons v. State, 189 S. W. 269. In a matter of procedure only, as this was, it is true in law, as it is in mathematics, that “things which are equal to the same thing are equal to each other,” or as reversely expressed, “things which are equal to each other are equal to the same thing.”

In the trial of every felony, the judge is required by law to charge the jury in writing all the law applicable thereto, and the law requires that the jury must be governed by the law as so charged. The judge in this instance so charged them: “You are bound to receive the law from the court, which is herein given you, and be governed thereby.” So it is the law that the jury in making up their verdict must consider such evidence as is submitted to them under the rulings of the court during the trial — they can consider no other. In this case there were only two parties thereto, the state and the appellant. The case was between these two parties, and no other. The state was on one side, the appellant on the ¡other. When each juror took the said oath administered, first copied above, he as completely and as absolutely solemnly swore to render a true verdict in this case, according to the law and the evidence, as if he had also taken each of said other oaths. There is no possible difference between the oath administered, and either of the others, in either substance or in effect. Neither could have been more binding on the juror than the other. Bach was as equally binding on each juror as the other could possibly have been. The fact that the oath which was administered, in its face, specifically stated that each juror solemnly swore to render a true verdict “according to the law as it may be given to you in charge by the court, and the evidence that may be submitted to you under the rulings of the court,” was but the very thing, and only that, which either of the other oaths prescribed, and “in all cases,” without doubt, embraced this specific case.

In his opinion Judge DAVIDSON cites and quotes from a considerable number of Supreme Court decisions and the earlier de-cnsions of this court to support Ms opinion. Not a single one of them cited for that purpose discuss, allude to, or decide thg question of waiver; not one. Neither of them are in point now on the question at issue here, and have all been superseded by our statute passed since they were rendered, for the very purpose of doing away with them and their effect. I refer to article 938, O. O. P. (old article ,904), which was approved March 3, 1897, p. 11. That article prior to said act was:

“The Court of Criminal Appeals may affirm the judgment of the court below, or may reverse and remand for a new trial, or may reverse and dismiss the case, or may reform and correct the judgment, as the law and the nature of the case may require.”

As that article then stood, the Supreme Court and this court had rendered said decisions cited by Judge DAVIDSON and many others to the same effect, and holding that unless the record on appeal affirmatively showed that venue, the jury was properly impaneled and sworn, that defendant pleaded, the trial judge’s charge was certified by him and filed by the clerk before it was read to the jury, was proven, they would and did reverse the case for any or all of these omissions. The Legislature by said' act of 1897 amended and added to said article as follows:

“But in all cases the court shall presume that the venue was proven in the court below; that the jury was properly impaneled and sworn; that the defendant was arraigned; that he pleaded to the indictment; that the charge of the court was certified by- the judge, and filed by the clerk of the court before it was read to the jury, unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by a bill of exceptions, properly signed and allowed by the judge of the court below, or proven up by bystanders, as is now provided by law, and incorporated in the transcript as required by law.”

In section 3 of that act, and which was and is an important and necessary part of it, the Legislature declared:

“The fact that the Court of Criminal Appeals is now in session, and many criminal cases now pending will be reversed, because there is no law in force authorizing said court to presume the regularity of the proceedings of the district and county courts, creates an imperative public necessity and emergency that the rule requiring bilis to be read on three several days should be suspended, and it is hereby so enacted.”

There can be no question but that by said act and article it is clear, plain, and certain that an accused at the very time when the jury is completed must then and there demand that the jury be sworn in accordance with our procedure, because, if so, the oath they did take was not sufficient, and if the judge should then refuse his demand, take his bill, and that it is too late after the trial is concluded for the first time in his motion for new trial to raise the point. Scott v. State, 42 Tex. Cr. R. 607, 62 S. W. 419; Belcher v. State, 71 Tex. Cr. R. 651, 161 S. W. 459; and other cases cited therein; McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93. This trial demonstrates all this. The judge thought the oath administered was all that was necessary, and so told the juror. No doubt appellant and his attorney also thought so. The judge also then stated that if the defendant or state desired the jury to be sworn “to try this case,” it could be done. But neither then desired it. By this trial appellant was acquitted of murder by the jury and cannot again be tried therefor. If he had been acquitted altogether, there would be no question but that he could not again be tried at all in this case.

Again, our statute (article 837, O. C. P.) expressly enacts, “New1 trial in cases of felony shall be granted for the following causes, and for no other;” then gives nine distinct grounds, neither df which embraces the ground herein set up. This article, in connection with article 938, excludes the idea that for the first time can an accused by motion for new trial get a new trial on the ground sought by appellant.

It is entirely out of point to cite the Constitution and statute, that an accused is entitled to a jury trial, and cannot waive a jury in a felony case. No one doubts this. But appellant had a jury trial,, and there was no thought or suggestion in this record that he did not have. By the jury he was acquitted of murder, and convicted only of manslaughter. He should not be permitted to experiment with a jury, sworn as this one was, and if not acquitted entirely, get a reversal.

The judgment should be affirmed, not reversed. I respectfully dissent.
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