White, Presiding Judge.
This appeal is from a conviction of murder in the first degree, the penalty of death being assessed by the judgment in the court below.
On the trial, after defendant’s application for a continuance had been overruled and both parties had announced ready for trial upon the merits, a jury having been selected, impaneled and sworn, but before the defendant had been arraigned or pleaded to the indictment, the district attorney moved the court, in writing, for leave to amend the caption of the indictment with regard to the time at which the term of the District Court was being held when the indictment was found—the amendment being to substitute “fourth Monday” for the words “first Monday,” where the latter appeared in said indictment. Defendant objected to said amendment, but the objection was overruled by the court and the amendment permitted, the defendant saving his bill of exception to the ruling.
With regard to amendments of indictments, it is provided by statute that, when the exception to an indictment or information is merely on account of form, the same shall be amended if decided to be defective, and the cause proceed upon such amended indictment or information. And any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits of both parties, but not afterwards. (Code Crim. Proc., arts. 549 and 550.)
An allegation as to the court and term of court in which the indictment is presented is a matter of form and amendable. (Bosshard v. The State, 25 Texas Sup., 307; Mathews v. The State, 44 Texas, 376; Houck v. The State, 1 Texas Ct. App., 357; Long v. The State, Id., 466; Sharp v. The State, 6 Texas Ct. App., 650.)
At the time these decisions were made, Article 55Ó, above quoted, had not been adopted. Under that Article it will be seen [444]*444that the right to amend as to matters of form is limited to "any time before an announcement of ready for trial upon the merits by both parties, but not afterwards.” Having announced ready for trial upon the merits, the allowance of amendment by the court in this case was clearly erroneous, and in contravention of the statute; and the fact that defendant had neither been arraigned nor pleaded to the indictment could not possibly affect the question, the parties having previously announced ready for trial upon the merits. Such irregularity and error, however, no exception having been made by the defendant to the indictment, being a mere formal defect, may well be considered as having been cured by the verdict subsequently rendered, and should not amount to reversible error.
By appellant’s second bill of exceptions it is made to appear that, when'the court was proceeding to organize the jury from the special venire which had been summoned in this case, the name of Jack Oraige stood as the eighth upon the list. His name being called and he not answering, the sheriff announced to the court that, though the said name appeared in his return as one of the special veniremen who had been summoned, the said return was a mistake, the said juryman Oraige never having been summoned, as stated in said return; whereupon the court, over objections of defendant, proceeded to organize said jury from the remainder of said special venire, and from talesmen subsequently ordered and summoned.
Appellant’s objection to this proceeding was that the juryman Jack Oraige appeared as one of the persons summoned under the special venire facias, a copy of which was served upon him; that the said juryman’s was one of the names specially drawn to serve upon the venire in the cause; and that the sheriff’s return on the venire did not show the diligence exercised by the sheriff to summon, or the cause, if any, that he was not summoned; that, on the contrary, the said return and service upon this defendant shows said juryman to have been summoned, when in truth and in fact it appears that he had not been summoned at all; and defendant claimed that his rights would be prejudiced by proceeding without said juryman Craige.
It is provided by statute that "no defendant in a capital case shall be brought to trial until he has had one day’s service of a copy of the names of persons summoned under a special venire facias, except where he waives the right,” etc. (Code Crim. Proc., art. 617.) In the early case of Bates v. The State, it was [445]*445said the law gives the accused the right of having a list of the jurors summoned upon the. special venire served upon him at least one day before the trial is commenced. The object is to enable him the better to exercise his right of challenge. It is a valuable right which is not to be denied the accused. It is true it may be defeated in whole or in part by the non-attendance of the jurors, and doubtless, after their attendance, the court may excuse one or more of them for cause. But it will be readily admitted that the cause which would excuse ought not to be occasioned by the action of the court in derogation of the prisoner’s right, but by something over which the court has no control. (19 Texas, 122; Thuston v. The State, 18 Texas Ct. App., 36.)
Article 640 of the Code of Criminal Procedure provides that in selecting the jury from the persons summoned, the names of such persons shall be called in the order in which they appear upon the list furnished the defendant. (Clark v. The State, 8 Texas Ct. App., 350.) There is good reason for these humane rules of the law—the serving the defendant with a copy of the names of those from whom the jury is to be selected, and requiring the names to be called according to the order of the list furnished him—because he is thus afforded time to investigate the antecedents of the jurors, and to prepare himself with reference to testing their qualifications, and exercising his right of challenge for cause, or of peremptory challenge, upon them. In the language of Judge Wheeler, in the Bates case, supra, the right is a valuable one, and one which should not be denied him.
It is true the man Craige had not been summoned as a juryman. This, however, makes no difference to the defendant, since he had been made to believe by the officers of court that Craige had been summoned, whilst, through no fault of his own, said juryman had not been summoned. In so far as the defendant was practically concerned, the juryman had, to all intents and purposes, been summoned; and it was as much beyond the power of the court to ignore that fact, or tq deny the defendant his rights under it, in contemplation of the facts, as it would have been for the court to have excused the juryman without sufficient cause, if he had in fact been summoned,—which authority on the part of the court has time and again been expressly denied. (Hill v. The State, 10 Texas Ct. App., 618; Wade v. The State, 12 Texas Ct. App., 358; Stirling v. The State, 15 Texas Ct. [446]*446App., 249; Kennedy v. The State, 19 Texas Ct. App., 618.) The action of the court in assuming such power is neither palliated nor excused by the fact that the defendant subsequently selected the jury which tried the case, without exhausting his peremptory challenges. (See authorities cited above.)
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White, Presiding Judge.
This appeal is from a conviction of murder in the first degree, the penalty of death being assessed by the judgment in the court below.
On the trial, after defendant’s application for a continuance had been overruled and both parties had announced ready for trial upon the merits, a jury having been selected, impaneled and sworn, but before the defendant had been arraigned or pleaded to the indictment, the district attorney moved the court, in writing, for leave to amend the caption of the indictment with regard to the time at which the term of the District Court was being held when the indictment was found—the amendment being to substitute “fourth Monday” for the words “first Monday,” where the latter appeared in said indictment. Defendant objected to said amendment, but the objection was overruled by the court and the amendment permitted, the defendant saving his bill of exception to the ruling.
With regard to amendments of indictments, it is provided by statute that, when the exception to an indictment or information is merely on account of form, the same shall be amended if decided to be defective, and the cause proceed upon such amended indictment or information. And any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits of both parties, but not afterwards. (Code Crim. Proc., arts. 549 and 550.)
An allegation as to the court and term of court in which the indictment is presented is a matter of form and amendable. (Bosshard v. The State, 25 Texas Sup., 307; Mathews v. The State, 44 Texas, 376; Houck v. The State, 1 Texas Ct. App., 357; Long v. The State, Id., 466; Sharp v. The State, 6 Texas Ct. App., 650.)
At the time these decisions were made, Article 55Ó, above quoted, had not been adopted. Under that Article it will be seen [444]*444that the right to amend as to matters of form is limited to "any time before an announcement of ready for trial upon the merits by both parties, but not afterwards.” Having announced ready for trial upon the merits, the allowance of amendment by the court in this case was clearly erroneous, and in contravention of the statute; and the fact that defendant had neither been arraigned nor pleaded to the indictment could not possibly affect the question, the parties having previously announced ready for trial upon the merits. Such irregularity and error, however, no exception having been made by the defendant to the indictment, being a mere formal defect, may well be considered as having been cured by the verdict subsequently rendered, and should not amount to reversible error.
By appellant’s second bill of exceptions it is made to appear that, when'the court was proceeding to organize the jury from the special venire which had been summoned in this case, the name of Jack Oraige stood as the eighth upon the list. His name being called and he not answering, the sheriff announced to the court that, though the said name appeared in his return as one of the special veniremen who had been summoned, the said return was a mistake, the said juryman Oraige never having been summoned, as stated in said return; whereupon the court, over objections of defendant, proceeded to organize said jury from the remainder of said special venire, and from talesmen subsequently ordered and summoned.
Appellant’s objection to this proceeding was that the juryman Jack Oraige appeared as one of the persons summoned under the special venire facias, a copy of which was served upon him; that the said juryman’s was one of the names specially drawn to serve upon the venire in the cause; and that the sheriff’s return on the venire did not show the diligence exercised by the sheriff to summon, or the cause, if any, that he was not summoned; that, on the contrary, the said return and service upon this defendant shows said juryman to have been summoned, when in truth and in fact it appears that he had not been summoned at all; and defendant claimed that his rights would be prejudiced by proceeding without said juryman Craige.
It is provided by statute that "no defendant in a capital case shall be brought to trial until he has had one day’s service of a copy of the names of persons summoned under a special venire facias, except where he waives the right,” etc. (Code Crim. Proc., art. 617.) In the early case of Bates v. The State, it was [445]*445said the law gives the accused the right of having a list of the jurors summoned upon the. special venire served upon him at least one day before the trial is commenced. The object is to enable him the better to exercise his right of challenge. It is a valuable right which is not to be denied the accused. It is true it may be defeated in whole or in part by the non-attendance of the jurors, and doubtless, after their attendance, the court may excuse one or more of them for cause. But it will be readily admitted that the cause which would excuse ought not to be occasioned by the action of the court in derogation of the prisoner’s right, but by something over which the court has no control. (19 Texas, 122; Thuston v. The State, 18 Texas Ct. App., 36.)
Article 640 of the Code of Criminal Procedure provides that in selecting the jury from the persons summoned, the names of such persons shall be called in the order in which they appear upon the list furnished the defendant. (Clark v. The State, 8 Texas Ct. App., 350.) There is good reason for these humane rules of the law—the serving the defendant with a copy of the names of those from whom the jury is to be selected, and requiring the names to be called according to the order of the list furnished him—because he is thus afforded time to investigate the antecedents of the jurors, and to prepare himself with reference to testing their qualifications, and exercising his right of challenge for cause, or of peremptory challenge, upon them. In the language of Judge Wheeler, in the Bates case, supra, the right is a valuable one, and one which should not be denied him.
It is true the man Craige had not been summoned as a juryman. This, however, makes no difference to the defendant, since he had been made to believe by the officers of court that Craige had been summoned, whilst, through no fault of his own, said juryman had not been summoned. In so far as the defendant was practically concerned, the juryman had, to all intents and purposes, been summoned; and it was as much beyond the power of the court to ignore that fact, or tq deny the defendant his rights under it, in contemplation of the facts, as it would have been for the court to have excused the juryman without sufficient cause, if he had in fact been summoned,—which authority on the part of the court has time and again been expressly denied. (Hill v. The State, 10 Texas Ct. App., 618; Wade v. The State, 12 Texas Ct. App., 358; Stirling v. The State, 15 Texas Ct. [446]*446App., 249; Kennedy v. The State, 19 Texas Ct. App., 618.) The action of the court in assuming such power is neither palliated nor excused by the fact that the defendant subsequently selected the jury which tried the case, without exhausting his peremptory challenges. (See authorities cited above.)
In this case, when it was made to appear that so serious a mistake had occurred with regard to the juryman Craige, the court should, in case the defendant refused to waive, and insisted upon having him there, have stopped the proceedings, placed the jurors already accepted in the custody of the sheriff, and postponed the case until the juryman Craige could have been sent for and brought into court; or the court should have discharged the jurors already taken, ordered a new special venire summoned, and had a copy of the same served upon the defendant, and the trial postponed until it could be commenced anew, as though the case had never been called for trial. Either of the above modes of procedure would have fully guarded and protected all the rights of the defendant in the premises. Appellant in this case could not have demanded an attachment for the juryman Craige, because the said juryman had in fact never been summoned. (Code Crim. Proc., art. 618; Thuston v. The State, 18 Texas Ct. App., 26; Thompson v. The State, 19 Texas Ct. App., 593; Kennedy v. The State, Id., 618; Murray v. The State, 21 Texas Ct. App., 466.)
As made to appear to us in this record, defendant has been denied rights guaranteed to him by the laws, and on account of which the judgment rendered against him must of necessity be reversed.
In reversing the case, we deem it our duty to call the attention of the court below to a special instruction given at the instance of the district attorney, as follows: “If the jury find from the evidence that the defendant killed the deceased, and that the said killing was murder, as murder has heretofore been defined by the court, and that such murder was committed while the defendant was lying in wait for the purpose of killing the deceased, then such murder would be murder of the first degree.”
It occurs to us that, if this instruction is not upon the weight of evidence, it trenches so nearly thereupon as to make it very questionable whether it was proper that it should have been given. A fair construction of the language used seems to import the same as though the jury had been told that a killing committed by a party lying in wait would per se be murder in the [447]*447first degree. Lying in wait is simply evidence of express malice, and one of the illustrations given by standard authors in the definition of that character of malice. It is not one of the definitions of murder in the first degree given by our statute. We are of opinion that it was error to give this charge, though it was not excepted to in the court below, nor is it complained of here on appeal.
Opinion delivered June 1, 1887.
Several other errors are assigned and discussed in the brief of «counsel for appellant, which we do not deem it necessary to notice, inasmuch as those which are considered material are of a «character not likely to arise on another trial. For the errors which we have above discussed, the judgment is reversed and the cause remanded for another trial.
Reversed and remanded.