Ned Davis v. The State, 9 Tex. Ct. App. 634

White, P. J. In the absence of anything going to show the contrary, it will be presumed that the fourteen names drawn by the clerk from the jury-box were all that there were remaining in the box, and consequently that he could not furnish a maximum list of jurors (twenty-four) as prescribed for felony cases less than capital. Code Cr. Proc., art. 646.

The statute provides that when there is a less number than the maximum in the box, the clerk shall draw the names that are in the box, and write them upon two slips of paper, and deliver one to the attorney for the State and the other to the defendant or his attorney. Ibid. If there are more names than twelve on the lists, the parties will proceed to select therefrom the jury; if there are less than twelve, then the court will order as many tales-men summoned as he may deem necessary to complete the panel. Id., art. 647. In this case there were fourteen names drawn.

From this list of fourteen names the defendant struck the name of A. C. Paul. It is fair to infer, though not stated in the bill of exceptions, that the prosecuting officer or defendant also struck another name. At all events, thirteen men were put into the jury-box and sworn to try the cause, and amongst them A. C. Paul, the juror who had been stricken from the list by defendant. But two witnesses were sworn and had testified when the State closed, and defendant declined to introduce any evidence. At this juncture it was discovered that there were thirteen men on the jury, and the court ordered A. C.

Paul, the juror stricken oifby the defendant, to retire from the box, which he did, ovex- objection of defendant, and the court’s charge upon the law was given to the twelve jurors remaining, who further considered and returned the verdict ' rendered. In his explanation to the bill of exceptions the judge says : “ From the time the jury were empanelled until the said Paul was discharged they had never left the box, and had no opportunity of conversing together.” Ro error is perceived in the action of the court; on the contrary, it was in conformity with the rule laid down in Bullard v.

The State, 38 Texas, 504, wherein it was held that “if a jury of more than twelve men has been empanelled, and the last juror sworn can be pointed out during the trial, he may be dismissed from the panel and the trial proceed.” Paul may not have been the last juror sworn, since the jury may all have been sworn together (Code Cr. Proc., art. 657) ; but he was the one defendant had stricken from the list and desired to get rid of, as shown by the bill of exceptions, and the court did right in standing him aside, since the rest of the jurors had been accepted and were unexceptionable.

There is no error in any of the proceedings on the trial, and the judgment is affirmed Affirmed.