Stewart v. State

18 Tex. Ct. App. 626, 1885 Tex. Crim. App. LEXIS 147

• Court: Court of Appeals of Texas
• Decided: June 26, 1885
• Docket: No. 3650
• Status: Published

Opinion

Willson, Judge.

In this case the record fails to show that the jury were sworn, and therefore the conviction must be set aside. (Nels v. The State, 2 Texas, 280; Baird v. The State, 38 Texas, 599; Cannon v. The State, 5 Texas Ct. App., 34; Kennon v. The State, 7 Texas Ct. App., 326; Howard v. The State, 8 Texas Ct. App., 612; Perry v. The State, 10 Texas Ct. App., 315; Kelly v. The State, 13 Texas Ct. App., 158; Dresch v. The State, 14 Texas Ct. App., 175; McHenry v. The State, Id., 209.)

It was recommended to the Nineteenth Legislature to enact a law which would authorize this court, on appeal, to presume, in the absence of anything in the record to the contrary, that the jury that tried the case were sworn, and to presume that all the proceedings of the trial court were in accordance with the law, unless it was made to affirmatively appear in the record, by proper bill-of exceptions or otherwise, that there was error in such proceedings, etc. But the Legislature did not see proper to adopt this recommendation, and it is only left for us to adjudge the law as we find it. (See Attorney-General’s Report, 1884, p. 20, arts. 870, 870b.)

The judgment is reversed and the cause remanded.

Beoersed and remanded.

[Opinion delivered June 26, 1885.]