Stephens v. State

25 S.W. 286, 33 Tex. Crim. 101, 1894 Tex. Crim. App. LEXIS 51

• Court: Court of Criminal Appeals of Texas
• Decided: February 24, 1894
• Docket: No. 208.
• Status: Published

Opinion

SIMKINS, Judge.

There is but one question in this case that need be considered: Was tbe jury sworn as required by law? Tbe trial judge states, that on Monday, tbe 15th of May, 1893, before this case was called for trial, when tbe jury for tbe week was being impanelled, tbe court administered to all tbe jurors for that week, including all tbe jurors who tried tbe case, tbe oath prescribed by article 3099 of tbe Revised Statutes for jurors in civil cases, and no other oath was administered to them; in other words, tbe jurors who were selected and tried this case were not sworn as required by article 657 of tbe Code of Criminal Procedure. Tbe clear intention of tbe Code is that a jury selected to try a defendant on a criminal charge shall be sworn in tbe specific case, and under the oath prescribed, and no other. Willson’s Crim. Stats., sec. 2289. Then only can a jury be said to be “impan-elled in tbe case.” Rippey’s case, 29 Texas Crim. App., 43. In all cases less than capital, jurors are not impanelled until selected and sworn as a body. Rippey’s case, supra; Heskew’s case, 17 Texas Crim. App., 161; Ellison’s case, 12 Texas Crim. App., 557. This is fatal to tbe conviction.

Tbe judgment is reversed and tbe cause remanded.

Reversed and remanded.

Judges all present and concurring.