Stephens v. State , 33 Tex. Crim. 101 ( 1894 )

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 impanelled, the court administered to all the jurors for that week, including 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. 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. Then only can a jury be said to be "impanelled in the case." Rippey's case, 29 Texas Crim. App., 43. In all cases less than capital, jurors are not impanelled until selected and sworn as a body. 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.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.