Howard v. State , 80 Tex. Crim. 588 ( 1917 )

Appellant was convicted of murder, his punishment being assessed at five years confinement in the penitentiary.

The questions with reference to the continuance and argument of prosecuting officer will not be discussed further than to say that upon another trial the attendance of the witnesses may be secured, and in regard to the argument, that will not occur again. We would feel inclined to reverse the case for these reasons, but under the view taken on the other question, those are not further mentioned.

As the facts attending the homicide had nothing to do with the swearing of the jury, the evidence will not be recited, nor discussed. They have no bearing on the question of swearing the jury.

The main question here discussed is, that the jury was not sworn specifically to try the case. This is shown by the court in his qualification to the bill of exceptions, and by jurymen who tried the case and is conceded. It seems the jurors were sworn the first day of the week as prescribed by the civil statutes, article 5213, but were not sworn when empaneled to try this particular case. The court in his qualification to the bill of exceptions states, in substance, that the jury was not otherwise sworn, and his attention was privately called to this fact by one of the jurors. The court informed this juror it was not necessary to swear them as a body as all the jurors had been sworn at the beginning of the week and such swearing was sufficient. We do not understand the trial court to be correct in his statement of the law. Article 714 of the Revised Code of Criminal Procedure thus reads:

"Oath to be administered to jurors. — When the jury has been selected, the following oath shall be administered to them by the court, or under its direction: ``You, and each of you, solemnly swear that in the case of the State of Texas against A.B., the defendant, you will a true verdict render according to the law and the evidence, so help you God.'"

Article 5213 of the Civil Statutes does not meet the requirements of article 714, C.C.P. This statute, article 714, C.C.P., has been frequently before the court, and invariably it has been held that the jury must be sworn in the particular case as prescribed by the statute. Commencing with Arthur v. State,3 Tex. 403, followed by Bawcom v. State, 41 Tex. 189 [41 Tex. 189], it was held that the statutory oath must be administered; that even a different oath than that prescribed would not be sufficient. Judge Moore, writing the opinion for the Supreme Court in the Bawcom case, said:

"The record shows that a different oath was administered to the jury from that prescribed by law. This, as has been decided heretofore, is error, for which the judgment must be reversed. (Arthur v. State, 3 Tex. 403; Martin v. State, decided during present term.) Where it does not affirmatively appear from the record that a different oath from that prescribed has been administered, it will be presumed in favor of the regularity of the proceeding in the District Court, that the jury were properly sworn. But the oath administered in this case is set forth in the record, and no presumption can be indulged to impeach its verity."

In the same volume, at page 501, in the Edmondson case, Judge Gould, writing for the Supreme Court, said:

"We call attention, however, to one other irregularity, with the view of having its repetition guarded against. The record recites that the jury were ``sworn to well and truly try the issue joined between the State of Texas and Luke Edmondson.' This is not the oath required by law to be administered. If the record assumes to set forth the oath, it should do it correctly. It is sufficient, however, if it states that the jury were sworn ``according to law,' without attempting to set out the oath, and that, we think, is the better plan."

In Smith v. State, 1 Texas Crim. App., at page 408, it is said:

"The objection to the oath administered to the jury is well taken. The proper oath to be taken by the jury on the trial of a criminal case has been prescribed by statute. See Code of Cr. Pro., art. 563; Pasc. Dig., art. 3029. When the oath required has been prescribed by law, another oath will not answer the purpose intended.

"In Arthur v. State, 3 Tex. 403, it was held that, ``Where the Legislature has undertaken to prescribe the oath which shall be taken, it must be observed, and where the record shows that the statutory requirement has been disregarded, and the court has provided something else in its stead, it will be as if no oath had been administered. Any other oath than that prescribed is, in contemplation of law, no oath. And it is clear that the finding of a jury not under oath can not constitute a legal verdict upon which the court can proceed to give judgment.'

"No rule, it would seem, has been more invariably adhered to than that laid down in the opinion above quoted from — that, where the record shows that the oath prescribed by the statute has been disregarded, and some other oath has been substituted, the oath so substituted will, in felony cases, be regarded as no oath at all. Such has been the uniform decision, both before and since the adoption of the Code of Criminal Procedure. Martin v. State, 40 Tex. 19; Bawcom v. State, 41 Tex. 189 [41 Tex. 189]; Morgan v. State, 42 Tex. 224; Burch v. State, 43 Tex. 376.

"These authorities, it is proper to observe, do not conflict with another class of cases where the record simply shows that the jury was sworn to try the case, but does not attempt to set out the oath; in which it is held that it will be presumed the proper oath had been administered."

In Leer v. State, 2 Texas Crim. App., 495, at page 496, Presiding Judge Ector said:

"The judgment in this case must be reversed because it appears from the record that another and different oath was administered to the jury than the one prescribed by law. Any other oath than the one prescribed is, in contemplation of law, no oath. If the judgment had recited that the jury were ``duly sworn,' or that the jury were ``sworn according to law,' it would be sufficient; the court would presume that the proper oath was administered to the jury. But the oath adminisistered in this case is set forth in the record, and ``no presumption can be indulged to impeach its verity.'" Further quotation might be made from this case, but it is in line with cases already cited.

In Rippey v. State, 29 Texas Crim. App., 37, at page 43, Presiding Judge White of the Court of Appeals said: "In these latter cases a juror is not empaneled, that is, sworn as a juror to try the case, until the whole jury has been selected and sworn as a body. Code Crim. Proc., art. 657." This rule was followed also in Heskew v. State, 17 Texas Crim. App., 161, and in Slaughter v. State, 100 Ga. 327.

Again, a case directly in point was delivered by Judge Simkins in Stephens v. State, 33 Tex.Crim. Rep.. The language there is as follows: "There is but one question in this case that need be considered: Was the jury sworn as required by law? The trial judge states that on Monday, the 15th of May, 1893, before this case was called for trial, when the jury for the week was being empaneled, the court administered to all the jurors who tried the case, the oath prescribed by article 3099 of the Revised Statutes for jurors in civil cases, and no other oath was administered to them; in other words, the jurors who were selected and tried this case were not sworn as required by article 657 of the Code of Criminal Procedure. (That article is now 714, C.C.P.) The clear intention of the Code is that a jury selected to try a defendant on a criminal charge shall be sworn in the specific case, and under the oath prescribed, and no other. Willson's Crim. Stats., sec. 2289. The oath testing them on each Monday is not sufficient. Then only can a jury be said to be ``empaneled in the case.' Rippey's case, 29 Texas Crim. App., 37. The oath administered on each Monday is not sufficient and has never been. In all cases less than capital, jurors are not empaneled until selected and sworn as a body, in the particular case. Rippey's case, supra; Heskew's case, 17 Texas Crim. App., 161; Ellison's case, 12 Texas Crim. App., 557. This is fatal to the conviction."

It would be more difficult to reconcile the action of the trial court with the prescribed statutory regulation and requirements and decisions quoted, and sustain this conviction because of a presumed waiver. The qualification of the judge does not show a waiver by defendant, nor does the court say he waived the necessary oath. He was not even requested so to do, nor was it even called to his attention by the court. We are cited, however, to the case of Caldwell v. State, 12 Texas Crim. App., 302. That was a death penalty case. Judge Hurt delivered the opinion. That opinion shows, in substance, that the oath was not administered to each individual juror as selected. The statute provides this ought to be done, but that opinion discloses, and it is the basis of the opinion, that when the jurors had all been selected, the oath was administered to them as a body. Judge Hurt held that this was such an irregularity as would not require a reversal, but places it upon the ground that the jury was sworn to try that particular case. That jury was not an unsworn body of twelve men as in the present case. Conceding the correctness of Judge Hurt's opinion in the Caldwell case, it would not be analogous to this case, nor have any bearing upon it, because in that case the jury were sworn to try the accused in that case. The verdict was a verdict of a sworn jury. In the instant case, however, there was no pretense that an oath was administered to the jury who tried the defendant, and the court concedes and all the testimony showed it was not so administered.

It has been the law in Texas both by Constitution and statute, that an accused is entitled to a trial by a jury. It has not been held, so far as we have been able to discover, that a jury could possibly be a jury until it had been sworn to try the particular case. It is not a trial by jury, for as Judge Simkins said, a jury can not be said to be empaneled until it has been sworn. The verdict in this case was by twelve men unsworn to try the issues between the defendant and the State. He was deprived of a constitutional as well as a statutory right. Such oath has been required in all the history of the jurisprudence of this country, and no man's life, liberty or property can be taken except by due process of law. A man tried by an unsworn jury can not be said to be tried according to the law of the land. The defendant, as provided by statute, can not waive trial by jury. If it be true that a jury is not a jury to try the case until sworn, as the authorities hold, then appellant was tried by a jury unsworn. But, as before stated, the statute says he can not waive a jury trial. His desire in the matter would not overturn the law. This is a question about which there has not been any serious discussion, because it is expressly stated, and under all the decisions held, that a defendant can not waive a trial by jury in a felony case.

We have another statute, article 938, Revised Code of Criminal Procedure, which says: "The Court of Criminal Appeals may affirm the judgment of the court below, or may reverse and remand for a new trial, or may reverse and dismiss the case, or may reform and correct the judgment, as the law and the nature of the case may require; but, in all cases, the court shall presume that the venue was proven in the court below; that the jury was properly empaneled and sworn; that the defendant was arraigned; that he pleaded to the indictment; that the charge of the court was certified by the judge, and filed by the clerk of the court before it was read to the jury, unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by a bill of exceptions, properly signed and allowed by the judge of the court below, or proven up by bystanders, as is now provided by law, and incorporated in the transcript as required by law." Had the record remained silent as to the failure of the jury to be sworn, this court, under the quoted statute, would presume that the jury was sworn. But whether the judgment recites the fact that the jury was sworn or not, it is subject to attack in the manner provided by statute, and the recitation in the judgment may be overcome by showing that such recitation is not true. Presumption is not conclusive, but it is expressly stated it shall not be conclusive and is subject to attack. It was successfully attacked in this case in the trial court. The truth of the attack is conceded by the court and proved by the statement under oath of every juror who tried the case, and not only is this true, but the court's attention was called to it at the beginning of the trial by one of the jurors who notified the judge that the jury had not been sworn. The court informed him that it was not necessary. Whatever may be thought as to the necessity of swearing a jury in the trial of a case, the law has decreed that the jury shall be sworn, and by a prescribed oath, and in the particular case it is not sufficient to administer the oath as required by the civil statutes in testing the qualification of jurors at the beginning of the week. That is not the oath required by the statute in the trial of a felony case. This has been the subject of many decisions and is settled. Quotations have already been made from some of these decisions, running back as far as the Third Texas Supreme Court Reports, all of which lay down the rule that the jury must be sworn as provided by the statute, and not only so, but where the judgment recites that a different form of oath was administered that is not sufficient, even where the jury is sworn in the particular case. This has been the unbroken rule in Texas since the decision of Arthur v. State, supra. We call attention to the fact that Judge Hurt, who wrote the opinion in the Caldwell case, supra, was on the bench when the Ellison case, supra, was delivered, and reported in the same volume as the Caldwell case, and that he was also a member of the court when the Stephens case, supra, was written. He was also a member of the court when the Rippey and Heskew cases, supra, were written. It seems not to have occurred to Judge Hurt at any time that the Caldwell case was in opposition to the long unbroken line of cases; in fact, could not well be antagonistic to those cases because in the Caldwell case the particular statutory oath was administered to the jurors as a body. Judge Hurt was not passing upon a question involved in the case where the jury was not sworn, but was passing upon a case in which the jury was sworn in accordance with the statute, but which jury had not been singly sworn in accordance with the terms of another article. The defendant in that case was tried by a sworn jury.

The judgment is reversed and the cause remanded.

Reversed and remanded.