Davis v. State

Citations

• 9 Tex. Ct. App. 634

Syllabus

<p>1. Practice—Organization oe Jury. — When the jury-box contains less than the maximum number of names, it becomes the duty of the clerk to draw the names which are in the box and write them on two slips of paper, giving one to the attorney for the State and the other to the defendant or his attorney. If there are more than twelve names on the lists, the parties will select the jury therefrom; if there are less than twelve, the court will order a sufficient number of talesmen to complete the panel. This rule applies to the organization of juries in felonies less than capital.</p> <p>2. Same. — If the clerk draws from the box a less number of names than the maximum, it will be presumed, in the absence of anything to show the contrary, that he drew all that were remaining in the box and could not furnish a maximum.</p> <p>3. Same — Oase Stated.—In this case fourteen names were drawn, and the defendant struck the name of P. from the list. Thirteen jurors, including P., who was stricken from the list, were sworn and placed in the jury-box, when the State introduced two witnesses and closed, and the defendant declined to introduce evidence. At this juncture it was discovered that thirteen jurors were in the box, and the court, over defendant’s objection, ordered P., the rejected juror, to retire, and submitted the case to the remaining twelve. The bill of exceptions shows that, from the time the jury were empanelled until P. was dismissed, the jury had not separated, nor had an opportunity of conversing together. Held, that the court did not err, and that the jury was legally organized.</p> <p>4. Same. — Bullard v. The State, 38 Texas, 504, wherein it is held that if a jury of more than twelve is empanelled, and the last juror sworn can be pointed out, he may be dismissed from the panel and the trial proceed, cited and approved.</p>