Jones v. State , 52 Tex. Crim. 303 ( 1907 )

On a former day of this term the judgment herein was affirmed. There were two questions discussed in the opinion. Appellant files a motion for rehearing setting up the fact that he was tried by only eleven jurors. This was not mentioned in the motion for a new trial, therefore, was overlooked. An inspection of the record discloses that a jury of twelve men was empaneled and the trial proceeded. Pending the trial information was conveyed to the court, to the attorneys and appellant that a brother of one of the jurors had been killed. It was thereupon agreed in open court by the parties, appellant, of course, being present, that the juror should be excused on account of this homicide of his brother. He was excused and participated no further in the trial. The verdict was returned by the remaining eleven jurors. The motion for a rehearing calls our attention to these matters and urges that we set aside the prior affirmance and reverse the judgment because the verdict was returned by only eleven jurors. It may be further stated that the verdict was signed by each of the eleven jurors. In other words, it is conclusively shown that after the twelfth man was excused the case was tried by only eleven jurors. We are of opinion that appellant's motion for a rehearing should be granted. Article 5, section 13, of our State Constitution, reads as follows: "Grand and petit jurors in the district courts shall be composed of twelve men; but nine members of a grand jury shall be a quorum to transact business and present bills. In trials of civil cases, and in trials of criminal cases below the grade of felony in the district courts, nine members of the jury, concurring, may render a verdict, but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it. When pending the trial of any case, one or more jurors, not exceeding three, may die, or be disabled from sitting, the remainder of the jury shall have the power to render the verdict; provided, that the Legislature may change or modify the rule authorizing less than the whole number of the jury to render a verdict."

It will be observed from the reading of this section of the Constitution, that a petit jury in the district court, shall be composed of twelve men. This being a felony case is not brought within the provision of the Constitution which authorizes nine members of the jury, concurring, to render a verdict. Nor was the juror excused, brought within that provision of said section which authorizes a jury to render a verdict where not exceeding three of them died or were disabled from sitting. Then we have a jury originally composed of twelve men, one excused by agreement of the parties and a verdict rendered by eleven which is prohibited by the above section of the Constitution. Section 10, of article 1, guarantees to the accused a trial by an impartial jury and that as was seen in the section quoted above, means twelve jurors. Section 15 of the Bill of Rights, is as follows: "The right of trial by jury shall remain inviolate." Article 10, of the Code of Criminal Procedure, reiterates this provision of the Bill of Rights, in precisely the same language. Article 21 of said Code of Criminal Procedure, provides: "No person can be convicted of a felony except upon the verdict of the jury duly rendered and recorded." Article 22 of the same code, enacts: "The defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the right of trial by jury in a felony case."

It would seem that the constitutional provisions cited, as well as the acts of the Legislature in obedience thereto, place the right of trial by twelve jurors in a felony case, even beyond the reach of the accused party waiving such right. These provisions have been the subject of adjudication in many opinions in this State, all of them holding as sacred, the right of trial by jury even in the face of a waiver by the accused where the prosecution is for a felony. See Lott's case, 18 Texas Crim. App., 627; Stell v. State, 14 Texas Crim. App., 59; Jester v. State, 26 Texas Crim. App., 369; Huebner v. State, 3 Texas Crim. App., 458; McCampbell v. State, 37 Tex.Crim. Rep.; Ogle v. State, 43 Tex. Crim. 219. There are many other supporting cases which we deem unnecessary to collate.

The motion for rehearing is granted and the former affirmance set aside, and because appellant was tried without a constitutional jury the judgment is now reversed and the cause remanded.

Reversed and remanded.

Henderson, Judge, absent.