White, Presiding- Judge.
Appellant was indicted in Webb county for the murder of one Thomas Eiley. On his application the venue was changed to ¡Nueces county, where upon trial of the case he was convicted of murder of the second degree, his punishment being assessed at ten years’ imprisonment in the penitentiary.
The first error complained of is that the court was without jurisdiction to try the case, because the record shows that the indictment was found and presented by an illegal grand jury, the same being composed of but eleven men.
In Lott’s case this court held that a grand jury in this State, as constituted by section 13 of article V of the Constitution, is composed of twelve men, and no other number greater or less. Such a grand jury alone can present a valid indictment under our Bill of Eights (Const., art. I, sec. 10), and an indictment presented by a purported grand jury composed of any other number of men is an absolute nullity, and incapable of conferring jurisdiction upon any court of this State. Such error goes to the foundation of the suit, and can be availed of in any manner and at any stage of the proceed[107]*107ings, even without exception below, and on appeal will be revised by this court if apparent of record. (18 Texas Ct. App., 627.) This doctrine has been reaffirmed at the present term in the case of Mc-Neese v. The State. (Ante, p. 48.)
Now let us see how the matter is made to appear in the record before us. In the district court of Webb county, where the indictment was found, it is shown that on July 8, 1882, twelve grand jurors who had been previously selected and summoned, and whose names are set out, appeared in court, were duly qualified, organized and •impaneled as a grand jury for the term. One Cayetano De La Garza was one of the twelve grand jurors thus impaneled.
On Monday, the 10th day of July, 1882, and after the jury bad been in session six days at least, the record contains this recital, viz.: “Monday, July 10th, 1882, and now on this day the grand jury through their foreman, S. T. Foster, Esq., report to the judge presiding that they had excused Cayetano De La Garza, one of their number, from further attendance on their meetings at this term of the court. . . . And now on this day came into open court the grand jury, and through their foreman hand to the judge presiding the following bills of indictmentand amongst them was the indictment in this case.
It is contended that when one of their number was excused for the term, that broke up and disorganized the entire body, and completely destroyed its autonomy. The proposition insisted upon is that “ there was and is no authority in the trial court or in its adjunct, the grand jury, to excuse for the term one of twelve members of a grand jury, and thus leave it, in violation of the Constitution, composed of eleven men.”
It is declared by the Constitution that “ grand and petit 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. Y, sec. 13.) Under provisions of the law sixteen men are selected and summoned (Code Crim. Proc., art. 357), out of whom twelve are to be selected and organized. When less than twelve of those summoned attend, the court shall order the sheriff to summon such additional number of persons as may be deemed necessary to constitute a grand jury of twelve men. (Code Crim. Proc., art. 368.) “ Nine members shall be a quorum for the purpose of discharging any duty or exercising any right properly belonging to the grand jury.” (Code Crim. Proc., art. 390.) We know of no authority of law which gives to a grand jury, once organized, the power to excuse one of its members for the term. Such practice is, to say the least of it, irregular. We think that the law contemplates that [108]*108there must, until they are discharged by the court for the term, be always subject for duty, if necessary, twelve men. They are not all required, however, to be present and acting when a bill is found, because nine are declared a quorum, and nine can “ transact business and present bills.” Such being the case, we think the jury might very properly, when necessary, excuse one or more of its members temporarily, so as the body be not reduced below a quorum of nine men at any one time.
But did the unauthorized act of the grand jury discharge the juror? We think not. The court alone could discharge the duly, organized grand jury as a body for the term. It has no authority to discharge a single juror after being impaneled, for the term, any more than the grand jury has. It follows, then, that the authority to discharge was wholly wanting, and the pretended discharge was therefore an absolute nullity, and the juror was still as much liable to be required to do duty as any of those remaining. The action was not only irregular but was absolutely void, and, being void, it could not and did not affect the legal constitution of the grand jury as originally organized by the court. That organization still remained, and if nine of that organization were present and transacted any business that the whole body could transact, even to the finding and presenting of bills, that was sufficient under the Constitution and laws. (State v. Miller, 3 Ala., 343.)
Moreover in this case, for aught that appears, the supposed discharged juror was not discharged or attempted to be discharged until after he had acted with his fellows, the other eleven, in finding the bill in this case. The recitals we have copied would indicate that he was. We find no error in the mode and manner of the presentment of the indictment.
Defendant made a first application for continuance, and the district attorney filed a denial of the same, under oath, as to diligence, as is allowed to be done by article 564, Code Criminal Procedure. This denial was presented to the judge with the application, and the court overruled the application, for want of diligence. Defendant’s counsel then requested permission to file counter-affidavits and to join issue upon the denial, which the court refused because the application had already been acted upon and overruled. Counsel then saved an exception to this ruling and asked time of the court within which to prepare and present his bill of exceptions, which the court would not allow, but informed counsel that the same could be prepared and presented at some future time; and a bill of exceptions was reserved to this action of the court.
Where a “ party is dissatisfied with any ruling, opinion or action [109]*109of the court, he may except thereto at the time the same is made, and at his request time shall be given to embody such exception in a written bill.” (Rev. Stats., art. 1358; Code Crim. Proc., art. 686; Sager v. The State, 11 Texas Ct. App., 110; Knox v. The State, 11 Texas Ct. App., 148.) It was unquestionably erroneous for the court to refuse to allow time to prepare the bill of exceptions then, because defendant had a legal right to have it prepared at that time. But it is not every error which will require a reversal of the judgment, and errors without prejudice are of this character. It is not shown that defendant has been prejudiced, and that the bill subsequently prepared and granted does not present as fully all the matters pertaining to the ruling as they could or would have been presented, if the bill had been prepared and granted at the time of the ruling.
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White, Presiding- Judge.
Appellant was indicted in Webb county for the murder of one Thomas Eiley. On his application the venue was changed to ¡Nueces county, where upon trial of the case he was convicted of murder of the second degree, his punishment being assessed at ten years’ imprisonment in the penitentiary.
The first error complained of is that the court was without jurisdiction to try the case, because the record shows that the indictment was found and presented by an illegal grand jury, the same being composed of but eleven men.
In Lott’s case this court held that a grand jury in this State, as constituted by section 13 of article V of the Constitution, is composed of twelve men, and no other number greater or less. Such a grand jury alone can present a valid indictment under our Bill of Eights (Const., art. I, sec. 10), and an indictment presented by a purported grand jury composed of any other number of men is an absolute nullity, and incapable of conferring jurisdiction upon any court of this State. Such error goes to the foundation of the suit, and can be availed of in any manner and at any stage of the proceed[107]*107ings, even without exception below, and on appeal will be revised by this court if apparent of record. (18 Texas Ct. App., 627.) This doctrine has been reaffirmed at the present term in the case of Mc-Neese v. The State. (Ante, p. 48.)
Now let us see how the matter is made to appear in the record before us. In the district court of Webb county, where the indictment was found, it is shown that on July 8, 1882, twelve grand jurors who had been previously selected and summoned, and whose names are set out, appeared in court, were duly qualified, organized and •impaneled as a grand jury for the term. One Cayetano De La Garza was one of the twelve grand jurors thus impaneled.
On Monday, the 10th day of July, 1882, and after the jury bad been in session six days at least, the record contains this recital, viz.: “Monday, July 10th, 1882, and now on this day the grand jury through their foreman, S. T. Foster, Esq., report to the judge presiding that they had excused Cayetano De La Garza, one of their number, from further attendance on their meetings at this term of the court. . . . And now on this day came into open court the grand jury, and through their foreman hand to the judge presiding the following bills of indictmentand amongst them was the indictment in this case.
It is contended that when one of their number was excused for the term, that broke up and disorganized the entire body, and completely destroyed its autonomy. The proposition insisted upon is that “ there was and is no authority in the trial court or in its adjunct, the grand jury, to excuse for the term one of twelve members of a grand jury, and thus leave it, in violation of the Constitution, composed of eleven men.”
It is declared by the Constitution that “ grand and petit 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. Y, sec. 13.) Under provisions of the law sixteen men are selected and summoned (Code Crim. Proc., art. 357), out of whom twelve are to be selected and organized. When less than twelve of those summoned attend, the court shall order the sheriff to summon such additional number of persons as may be deemed necessary to constitute a grand jury of twelve men. (Code Crim. Proc., art. 368.) “ Nine members shall be a quorum for the purpose of discharging any duty or exercising any right properly belonging to the grand jury.” (Code Crim. Proc., art. 390.) We know of no authority of law which gives to a grand jury, once organized, the power to excuse one of its members for the term. Such practice is, to say the least of it, irregular. We think that the law contemplates that [108]*108there must, until they are discharged by the court for the term, be always subject for duty, if necessary, twelve men. They are not all required, however, to be present and acting when a bill is found, because nine are declared a quorum, and nine can “ transact business and present bills.” Such being the case, we think the jury might very properly, when necessary, excuse one or more of its members temporarily, so as the body be not reduced below a quorum of nine men at any one time.
But did the unauthorized act of the grand jury discharge the juror? We think not. The court alone could discharge the duly, organized grand jury as a body for the term. It has no authority to discharge a single juror after being impaneled, for the term, any more than the grand jury has. It follows, then, that the authority to discharge was wholly wanting, and the pretended discharge was therefore an absolute nullity, and the juror was still as much liable to be required to do duty as any of those remaining. The action was not only irregular but was absolutely void, and, being void, it could not and did not affect the legal constitution of the grand jury as originally organized by the court. That organization still remained, and if nine of that organization were present and transacted any business that the whole body could transact, even to the finding and presenting of bills, that was sufficient under the Constitution and laws. (State v. Miller, 3 Ala., 343.)
Moreover in this case, for aught that appears, the supposed discharged juror was not discharged or attempted to be discharged until after he had acted with his fellows, the other eleven, in finding the bill in this case. The recitals we have copied would indicate that he was. We find no error in the mode and manner of the presentment of the indictment.
Defendant made a first application for continuance, and the district attorney filed a denial of the same, under oath, as to diligence, as is allowed to be done by article 564, Code Criminal Procedure. This denial was presented to the judge with the application, and the court overruled the application, for want of diligence. Defendant’s counsel then requested permission to file counter-affidavits and to join issue upon the denial, which the court refused because the application had already been acted upon and overruled. Counsel then saved an exception to this ruling and asked time of the court within which to prepare and present his bill of exceptions, which the court would not allow, but informed counsel that the same could be prepared and presented at some future time; and a bill of exceptions was reserved to this action of the court.
Where a “ party is dissatisfied with any ruling, opinion or action [109]*109of the court, he may except thereto at the time the same is made, and at his request time shall be given to embody such exception in a written bill.” (Rev. Stats., art. 1358; Code Crim. Proc., art. 686; Sager v. The State, 11 Texas Ct. App., 110; Knox v. The State, 11 Texas Ct. App., 148.) It was unquestionably erroneous for the court to refuse to allow time to prepare the bill of exceptions then, because defendant had a legal right to have it prepared at that time. But it is not every error which will require a reversal of the judgment, and errors without prejudice are of this character. It is not shown that defendant has been prejudiced, and that the bill subsequently prepared and granted does not present as fully all the matters pertaining to the ruling as they could or would have been presented, if the bill had been prepared and granted at the time of the ruling. The exception made was to the refusal of the court to permit defendant, after the application for continuance was overruled, to file counter-affidavits and join issue in the contest or denial of the district attorney as to the diligence shown by the application. The bill of exceptions is itself defective, in that it fails wholly to set out said counter-affidavits. Unless the affidavits are set out, we cannot tell how far, or whether, indeed, defendant has been injured or prejudiced. It is true that the statute provides that when the statements with regard to diligence are denied under oath, “ the issue shall be tried by the judge, and he shall hear testimony by affidavits and grant or refuse the continuance, according to the law and the facts of the case.” (Code Grim. Proc., art. 565.) But in this case it appears that defendant did not ask or request permission to file his testimony by affidavits until after the court had determined the issue made by the affidavit of the district attorney, and had overruled the application; nor is it stated or otherwise made to appear that he did not have notice of the filing of the denial and affidavits of the district attorney before the same were submitted to and passed upon by the judge. If he knew of such denial and the filing thereof, and failed to file his counter-affidavits in proper time, and before action by the court, he has no one to blame but himself. But again, the record discloses that on defendant’s motion for new trial, when his application for continuance was a second time entitled to be considered by the court, the district attorney again filed his affidavit contesting the diligence disclosed in substantially the same terms and for the same reasons as stated in his denial when the application was presented to the court in the first instance, and we fail to find any counter-affidavits made by and in behalf of defendant even at that time. We do not think the bill of exceptions sufficient either [110]*110in the matter as stated or in the prejudice shown to defendant’s rights.
Quite a number of objections are urged to the charge of the court. The defense relied upon was insanity, and there was testimony tending to support this defense. The testimony tended to show the hereditary taint of insanity in defendant’s family, and the fact that he himself had been deranged more than once prior to the homicide, and there was some testimony as to his condition just previous to the homicide, giving color to the defense. At all events, the evidence was of a character to require of the court a charge upon this defense.
Let us see how the charge is made to apply to this defense. 1. In' its fifth paragraph the jury were instructed as follows: “Malice is implied from the commission of any premeditated, deliberate killing, or where the killing was done suddenly, without any, or without a considerable, provocation.” This is not a correct rule or definition of implied malice, and especially when applied to the defense set up in this case. A correct rule of implied malice is that “ where it is shown that a homicide was intentionally committed, and the facts show that it was done neither with express malice nor under circumstances excusing, justifying or mitigating the act, the law inthat event implies malice and the offense is murder in the second degree.” (Douglass v. The State, 8 Texas Ct. App., 520; Harris v. The State, id., 90; Hubby v. The State, id., 598; Ellison v. The State, 12 Texas Ct. App., 558; Neyland v. The State, 13 Texas Ct. App., 536; Turner v. The State, 16 Texas Ct. App., 379.)
The vice in the court’s definition is apparent when considered with reference to the defense of insanity. It makes a sudden killing which is without provocation per se a killing upon implied malice, and murder of the second degree. And yet such a killing could and might be committed by an insane man. If by an insane party, under the circumstances mentioned, the law would excuse it for want of that “sound memory and discretion” essential to the crime of murder (Penal Code, art. 607), and moreover because the law itself expressly declares that “ no act done in a state of insanity can be punished as an offense.” (Penal Code, art. 39; Webb v. The State, 9 Texas Ct. App., 490; Erwin v. The State, 10 Texas Ct. App., 700.)
2. The closing sentence of the sixth paragraph of the charge is in these words: “ If, however, you shall have a reasonable doubt of his being guilty of murder in the first degree, you will acquit him of murder in the first degree, and fi/nd him guilty of murder in [111]*111the second degree, and assess his punishment at confinement in the penitentiary for any number of years not less than five.” It is true that the previous context of the paragraph qualifies this sentence, in that it presupposes the jury to have found, and is predicated upon the fact, that murder had been committed. Still the sentence, being a separate one, detached by a full period from the context, is objectionable at least as being calculated, if indeed it did not tend strongly, to mislead the jury.
3. In the seventh paragraph the jury were instructed that the defense of insanity must be dearly proved, and that the insanity must have existed at the very commission of the offense. Upon comparison we find this paragraph to be a literal copy of an instruction approved by this court in Clark v. The State, 8 Texas Ct. App., 350. It is strenuously insisted that the charge is wrong and in conflict with the rule announced in Jones v. The State, 13 Texas Ct. App., 1, which is, that such substantive defenses as insanity must be established by defendant by a preponderance of evidence. We are unable to see any serious, appreciable conflict in the charge and this latter rule. The whole subject is discussed in Webb v. The State, 9 Texas Ct. App., 490, and King v. The State, 9 Texas Ct. App., 515, and the rule declared was that the defendant “should show his insanity clearly, and to that extent that the minds and consciences of the jury can say that on account of his insanity he was guiltless of entertaining the criminal intent essential to responsibility for the crime charged.” And the same doctrine is reaffirmed in Johnson v. The State, 10 Texas Ct. App., 571. All that is required is that the evidence should be sufficiently clear to satisfy the minds and consciences of the jury that insanity is proven, and Jones’s case simply declares that a preponderance of the evidence may be sufficient for that purpose. The objection is not well taken.
4. Nowhere in the entire charge is there a direct, positive and affirmative instruction upon insanity as a defense, and nowhere were the jury told substantially even what is most emphatically declared by statute to be the law, to wit, that “No act done in a state of insanity can be punished as an offense.” (Penal Code, art. 39.) Defendant was entitled to such an instruction.
For errors pointed out in the charge of the court to the jury, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered October 24, 1885.]