Tom McMahon v. The State, 17 Tex. Ct. App. 321

White, Presiding Judge. Objection to the mode and manner of preparing the jury list by the clerk was made for the first time in defendant’s motion for a new trial. It is shown by a bill of exceptians granted by the trial judge that the requirements of the statute (Code Crim.

Proc., arts. 645 and 646) had not been complied with, in that the clerk did not draw the names from the box and enter them, upon two slips of paper, but that he had, prior to the announcement of ready for trial, already prepared'' his lists for the parties; and the court, in an explanation to the bill, states that this practice has been adopted in order to expedite business. Such practice is an innovation upon the statute, and many good reasons suggest themselves in behalf of a strict observance of the statutory method.

Suffice it to say, however, that objections to the mode and manner of drawing and preparing the jury list should be made at the time. If not done then, and a jury is selected from the lists prepared, without objection, the defendant will not be heard to complain afterwards, but will be held to have waived all such objections,— since he can waive every right except the right of trial by jury.

Moreover, such an objection cannot be urged nor entertained on the motion for new trial,— it not being one of the grounds for new trial enumerated in the statute, and none other than those enumerated will be allowed. (Code Crim. Proc., art. 777.) An acceptance of the jury by the accused is a waiver of the right to question its organization on motion for new trial or in arrest of judgment. (Buie v. The State, 1 Texas Ct. App., 452.) Several other exceptions to the admission of testimony and the charge of the court are shown by the record.

They are in the main so meagre as scarcely to apprise us fully and certainly of the facts necessary to be understood so as to enable us to pass intelligibly upon the objections. Without discussing them in detail, we are of opinion that none of them, if we properly understand them, are maintainable as legal objections. In our opinion, however, the objection to the sufficiency of the evidence to uphold and sustain the verdict and judgment is well taken.

We have given the evidence, as set forth in the statement of facts, a most careful and mature consideration, and, in our opinion, it fails to show a stronger, if, indeed, it shows as strong, a case against this appellant as other parties whose opportunities for committing the crime charged, if any crime has been shown, were equally as favorable as his, and perhaps with as strong inducements as are shown on his part. We do not wish to be understood as intimating that the evidence goes to establish the guilt of any one, for we do not think it does.

It certainly does not establish appellant’s guilt with that degree of moral certainty as would exclude every reasonable hypothesis of his innocence, and, though he may be guilty, we do not believe it would be safe to let this conviction as disclosed in the record before us stand as a precedent. Because the evidence is insufficient, and because the court below should have granted a new trial, the judgment is reversed and the cause remanded for a new trial. Reversed and remanded. [Opinion delivered December 10, 1884 ]