Hurt, Judge.
This is a conviction for murder of the first degree with the death penalty.
Twelve men were impaneled as a grand jury. Eleven presented this bill of indictment. Appellant moved to quash because a member had been excused by the court, had abandoned the State, and was a resident of the State of Missouri at the time this indictment was presented.
The position assumed by counsel for appellant is that, unless there was a grand jury composed of twelve men when the bill was presented, less than twelve were without authority to act, the constitutional body being dissolved; that, while it is true "that nine members may constitute a quorum, etc., still there must be a body composed of twelve men in order to the existence of a legal grand jury.
Grand juries shall be composed of twelve men, but nine members of a grand jury shall be a quorum to transact business and present bills. (Const., art. 5, sec. 13.) The Supreme Court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum, and the .concurrence of two judges shall be necessary to the decision of a case. Two judges of the Supreme Court contitute a quorum, though the Constitution requires that the Supreme Court shall consist of a chief justice and two associates.
How, let us suppose that a member of the Supreme Court should die, evidently there would still be a constitutional court remaining, with full and complete powers to decide causes, powers and authority, equal to that possessed by a full bench. Applying the analogy, suppose three members of the grand jury should die, would not the remaining nine have all the powers and functions of a body composed of twelve men? Would it be necessary to render their acts legal, for the body, composed originally of twelve men, to remain unbroken? If so, why not apply this rule to the organization of the Supreme Court, and hold that less than three members would not constitute a court?
We may be answered that the Constitution expressly provides that two members of the court shall be a quorum. To this we reply that the Constitution expressly declares that nine members of the grand jury shall be a quorum to transact business and [310]*310present bills—a quorum to do precisely that which is objected to by appellant, i. e., present bills. If, therefore, the death of a member of the Supreme Court will not affect its existence as a court, for the same reason the death of a member of the grand jury will not dissolve the grand jury and render the acts of a quorum nugatory.
If, however, the Legislature should, in violation of the Constitution, place upon the Supreme bench more than three members, the courts of the country would not hesitate to declare such an organization absolutely void—no court at all. So with the organization of a grand jury. By statute it is made the duty of the judge to impanel twelve men. (Code Crim. Proc., arts. 368, 371, 376, 384, 391.) Twelve constituting the panel, twelve should be impaneled; but from this it does not follow that there must be twelve jurors subject for duty or within the jurisdiction of the court all the while. The object of the provision of the Constitution making nine a quorum was evidently intended to meet any and all contingencies of like character as that presented in this case, or the death of a member. There was no error in refusing to quash the indictment.
The indictment alleged the name of the deceased to be “L. S. Guinn.” On the trial his name was proven to be not “L. S.” but “S. L. Guinn.” It is claimed that the variance is fatal. Inasmuch as the case must necessarily be reversed on other points, and a new indictment can easily and readily be presented by which the variance can be obviated and corrected, we do not discuss this branch of the case, but suggest that the prosecution procure the finding of a new indictment. There is certainly, as the case now stands, much doubt as to the variance having been obviated by the evidence on that point.
By bill of exceptions it appears that justice of the peace Sleeper, learning that Professor Guinn had been shot, went to the house of J. W. Brightwell, in Waco, on August 27, 1887, and found Professor Guinn there and wounded with a pistol shot wound; that, after he got to the place where Guinn was shot, and at which place he arrived about one hour after the shooting, he heard certain declarations made by Guinn. At the time of making such declarations deceased, Guinn, was conscious of approaching death, and the declarations were made voluntarily, and were not made in response to questions put to deceased, and such declarations were first orally made by deceased and then immediately written down by the witness, and [311]*311read over to him, deceased, when he subscribed the same. "I do not know where the written statement of deceased so taken down by me is, or what became of it. I gave it to some one, but don’t remember to whom I gave it. I gave it to some one a day or so before Guinn died, and have not seen it since. In the oral statement made in my presence by the deceased, as aforesaid, deceased said that he was occupying a house on Sixth street and Cleveland street in Waco, belonging to the defendant, J. M. Drake, and which he, deceased, had been renting from Drake; that he and J. M. Drake, a few days prior to that time, had had a difficulty growing out of the rent of said house; and that he, deceased, was preparing to leave the house, and on the previous day had moved most of his household goods therefrom, and returned on that morning to finish moving, and found J. M. Drake and his two little boys there when he got there, which was shortly after nine o’clock a. m.; and that, as he, deceased, was on the back gallery of the house, sweeping out some trash, J. M. Drake accosted him, deceased, about paying. the rent, and deceased replied to J. M. Drake and told him he, Drake, had not acted the gentleman, and therefore he did not consider that he owed him anything, and at this Drake drew his pistol and fired upon and wounded deceased.”
To this bill the learned judge appends this statement: The above bill is given with this modification: Justice of the Peace Sleeper testified that he first took his seat on the bed, when deceased made orally the statements above set out; that when this was done he went to a table and wrote down what deceased had said as nearly as he could, returned to the bed and read it over to him, who signed it. The oral statements were allowed to be testified to, as they were made before the writing was made; but the witness was not allowed to state anything contained in the written declaration.”
To the admission of the declarations counsel of appellant objected, because the statements and declarations of deceased having been reduced to writing, and signed by deceased when made, the writing was the best evidence of what deceased actually said, the loss of the written declaration not being accounted for.
From the bill of exceptions it appears that immediately after the written declarations were made they were reduced to writing and signed by deceased. Mow the learned judge seems to hold that, as the declarations were made before they were re[312]*312duced to writing, therefore they could be proved by witnesses who heard them, notwithstanding they were immediately reduced to writing. A makes declarations in the presence of B, who immediately reduces th em to writing. It is competent to prove by B what A said before he, B, reduced A’s statements—sayings—to writing.
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Hurt, Judge.
This is a conviction for murder of the first degree with the death penalty.
Twelve men were impaneled as a grand jury. Eleven presented this bill of indictment. Appellant moved to quash because a member had been excused by the court, had abandoned the State, and was a resident of the State of Missouri at the time this indictment was presented.
The position assumed by counsel for appellant is that, unless there was a grand jury composed of twelve men when the bill was presented, less than twelve were without authority to act, the constitutional body being dissolved; that, while it is true "that nine members may constitute a quorum, etc., still there must be a body composed of twelve men in order to the existence of a legal grand jury.
Grand juries shall be composed of twelve men, but nine members of a grand jury shall be a quorum to transact business and present bills. (Const., art. 5, sec. 13.) The Supreme Court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum, and the .concurrence of two judges shall be necessary to the decision of a case. Two judges of the Supreme Court contitute a quorum, though the Constitution requires that the Supreme Court shall consist of a chief justice and two associates.
How, let us suppose that a member of the Supreme Court should die, evidently there would still be a constitutional court remaining, with full and complete powers to decide causes, powers and authority, equal to that possessed by a full bench. Applying the analogy, suppose three members of the grand jury should die, would not the remaining nine have all the powers and functions of a body composed of twelve men? Would it be necessary to render their acts legal, for the body, composed originally of twelve men, to remain unbroken? If so, why not apply this rule to the organization of the Supreme Court, and hold that less than three members would not constitute a court?
We may be answered that the Constitution expressly provides that two members of the court shall be a quorum. To this we reply that the Constitution expressly declares that nine members of the grand jury shall be a quorum to transact business and [310]*310present bills—a quorum to do precisely that which is objected to by appellant, i. e., present bills. If, therefore, the death of a member of the Supreme Court will not affect its existence as a court, for the same reason the death of a member of the grand jury will not dissolve the grand jury and render the acts of a quorum nugatory.
If, however, the Legislature should, in violation of the Constitution, place upon the Supreme bench more than three members, the courts of the country would not hesitate to declare such an organization absolutely void—no court at all. So with the organization of a grand jury. By statute it is made the duty of the judge to impanel twelve men. (Code Crim. Proc., arts. 368, 371, 376, 384, 391.) Twelve constituting the panel, twelve should be impaneled; but from this it does not follow that there must be twelve jurors subject for duty or within the jurisdiction of the court all the while. The object of the provision of the Constitution making nine a quorum was evidently intended to meet any and all contingencies of like character as that presented in this case, or the death of a member. There was no error in refusing to quash the indictment.
The indictment alleged the name of the deceased to be “L. S. Guinn.” On the trial his name was proven to be not “L. S.” but “S. L. Guinn.” It is claimed that the variance is fatal. Inasmuch as the case must necessarily be reversed on other points, and a new indictment can easily and readily be presented by which the variance can be obviated and corrected, we do not discuss this branch of the case, but suggest that the prosecution procure the finding of a new indictment. There is certainly, as the case now stands, much doubt as to the variance having been obviated by the evidence on that point.
By bill of exceptions it appears that justice of the peace Sleeper, learning that Professor Guinn had been shot, went to the house of J. W. Brightwell, in Waco, on August 27, 1887, and found Professor Guinn there and wounded with a pistol shot wound; that, after he got to the place where Guinn was shot, and at which place he arrived about one hour after the shooting, he heard certain declarations made by Guinn. At the time of making such declarations deceased, Guinn, was conscious of approaching death, and the declarations were made voluntarily, and were not made in response to questions put to deceased, and such declarations were first orally made by deceased and then immediately written down by the witness, and [311]*311read over to him, deceased, when he subscribed the same. "I do not know where the written statement of deceased so taken down by me is, or what became of it. I gave it to some one, but don’t remember to whom I gave it. I gave it to some one a day or so before Guinn died, and have not seen it since. In the oral statement made in my presence by the deceased, as aforesaid, deceased said that he was occupying a house on Sixth street and Cleveland street in Waco, belonging to the defendant, J. M. Drake, and which he, deceased, had been renting from Drake; that he and J. M. Drake, a few days prior to that time, had had a difficulty growing out of the rent of said house; and that he, deceased, was preparing to leave the house, and on the previous day had moved most of his household goods therefrom, and returned on that morning to finish moving, and found J. M. Drake and his two little boys there when he got there, which was shortly after nine o’clock a. m.; and that, as he, deceased, was on the back gallery of the house, sweeping out some trash, J. M. Drake accosted him, deceased, about paying. the rent, and deceased replied to J. M. Drake and told him he, Drake, had not acted the gentleman, and therefore he did not consider that he owed him anything, and at this Drake drew his pistol and fired upon and wounded deceased.”
To this bill the learned judge appends this statement: The above bill is given with this modification: Justice of the Peace Sleeper testified that he first took his seat on the bed, when deceased made orally the statements above set out; that when this was done he went to a table and wrote down what deceased had said as nearly as he could, returned to the bed and read it over to him, who signed it. The oral statements were allowed to be testified to, as they were made before the writing was made; but the witness was not allowed to state anything contained in the written declaration.”
To the admission of the declarations counsel of appellant objected, because the statements and declarations of deceased having been reduced to writing, and signed by deceased when made, the writing was the best evidence of what deceased actually said, the loss of the written declaration not being accounted for.
From the bill of exceptions it appears that immediately after the written declarations were made they were reduced to writing and signed by deceased. Mow the learned judge seems to hold that, as the declarations were made before they were re[312]*312duced to writing, therefore they could be proved by witnesses who heard them, notwithstanding they were immediately reduced to writing. A makes declarations in the presence of B, who immediately reduces th em to writing. It is competent to prove by B what A said before he, B, reduced A’s statements—sayings—to writing. This simple illustration demonstrates the utter fallacy of the proposition. If the views of the learned judge be correct, the declarations must be written out by the declarant himself, for, if he should dictate to another person, this person could relate to the jury what was said before he could write it out. If reduced to writing at the time, the writing is the best evidence of what the statements were—the best evidence of what deceased said before the declarations were reduced to writing. Sleeper would be more likely to remember correctly for a few moments what was said than for weeks or months. Man’s memory is very treacherous and uncertain, while written documents have no such infirmities. (Krebs v. The State, 8 Texas Ct. App., 1; Whart. Hom., sec. 766; 1 Greenl. Ev., sec. 161.) It is not pretended that the non-production of the written declarations was legally and properly accounted for.
It appears from the evidence that the original or a correct newspaper copy of the declarations was brought to the deceased a short time before he died, read over to him, and that he was asked if it was true; to which the deceased replied that it was substantially correct, but that there were some immaterial alterations he would like to make, but that he was too weak to do it; and they were never made. As the writing was the best evidence of what deceased said before his statements were reduced to writing, it is reasonable and probable that the oral statements were correctly reduced to writing and were those shown to him. blow, when his attention was directly called to them, and he was asked whether they were true or not, he answers that they were substantially correct but that there were some immaterial alterations he would like to make. If they were correct, they spoke what occurred at the' scene of the homicide. If substantially correct, they reproduced substantially what occurred at the homicide. If, however, alterations were required to make them correct and true; they did not speak the facts which occurred at the homicide, they were not a reproduction of that transaction. But deceased said these alterations were immaterial.
“The statements of the deceased as to the cause of the injury [313]*313from which death finally results, when dying declarations within the meaning of the law, are admitted in evidence on the ground of necessity, and the rule under which they are admitted forms an exception in the law of evidence. The accused, under the rule, has not the benefit of meeting the witnesses against him face to face, a constitutional right in all criminal trials with this solitary exception. He is deprived of the security of an oath attended with consequences of temporal punishment for perjury. He is deprived of the great safe guard against misrepresentation and misapprehension—the power of cross examination. The evidence is hearsay in its character; the statements are liable to be misunderstood and to be misrepeated upon the trial, and the evidence goes to the jury with surroundings tending to produce upon the mind emotions of deep sympathy for the deceased, and of involuntary resentment against the accused.
“It is vain to attempt to disguise the infirmities and imperfections of the human mind, and its susceptibility to false impressions, under circumstances touching the heart and exciting the sympathies; and the law has wisely, in case of dying declarations, required all the guarantees of truth the nature of the case admits of.” (Starkey v. The People, 17 Ill., 20.)
Suppose deceased were alive and on the stand as a witness. He deposes to the facts attending the killing, and, when asked if his relation of them is correct, he should answer: “Substantially, but there were some immaterial alterations in his evidence he would like to make.” Would not the opposing party be eager to know what error needed correction? Would he be willing to leave this matter to the opinion of the witness—let him decide what was substantially correct, what was immaterial? How frequently'is it the case that matters of the first importance are considered immaterial by a witness. Witnesses are not judges of the admissibility of evidence, nor of the bearing one fact has upon another. The most learned lawyer can not always in advance appreciate the bearing and importance of all the facts. A fact or circumstance, when viewed alone may be considered trifling—as but chaff—but, when considered with reference to other facts, may be of the greatest importance.
Mr. G-reenleaf says:' “That if it appears that the declarations were intended by the dying person to be connected with and qualified by other statements material to the completeness of the narrative, and that this was prevented by interruption or death, [314]*314so that the narrative was left incomplete and partial, the evidence is inadmissible.” (1 Greenl. Ev., 161.)
Opinion delivered March 17, 1888.
If too much has been said,» the narrative may be as damaging to the accused as if it was partial. If it needs correcting, the defect—the error to be corrected—may be as injurious as if it were partial and incomplete. When we consider this evidence with reference to its awful consequences to the appellant—his right to live depending almost entirely upon it—and when considered in the light of the fact that great pains had been taken to obtain the statements of deceased in writing—they being reduced to writing, signed and sworn to by him, and yet not produced on the trial—we are clearly of opinion that, even if not. obnoxious to the first objection discussed, it is not admissible, and that the exceptions presented by counsel for appellant should have been sustained.
Under the peculiar circumstances of this case, the court should have limited or restricted the purpose of the testimony of the • four witnesses who testified to the statements of Jimmie Drake, made at the store house of East. This was not criminative evidence, but evidence for the purpose of impeaching Drake. (Alexander v. The State, 21 Texas Ct. App., 407, and cases there cited.)
Other portions of the charge are complained of, but there being no special exceptions, when taken as a whole, the errors are not such as' require a reversal of the judgment.
For the reasons above stated, the judgment is reversed and. the cause remanded.
Reversed and remanded.