I am of the opinion that the affirmance of this case is erroneous, and the rehearing ought to have been granted. It is unnecessary to repeat the verbal charge given the jurors before they were empaneled; it is sufficiently set out in the majority opinion. Some of those jurors tried appellant and convicted appellant. I do not purpose taking up the reasons in detail why the trial courts should not give such charges as that complained of in this case, but will discuss it in a general way. Our statute and the Constitution provide that the accused shall have a fair trial by an impartial jury. To this end it is provided as a fundamental proposition that the court shall be the judge of the law, and the jury the exclusive judges of the facts proved, credibility of the witnesses, and the weight to be given the testimony. To secure this it is expressly provided the court shall give the law of the case in a written charge in allfelonies, distinctly setting forth the law applicable to thecase, and the court is expressly prohibited from expressing any opinion on the weight of the testimony and from using any argument or statements calculated to influence the jury, or to arouse their passions. All this is either constitutional or statutory, or it may be said to be included in both. It is further provided that this charge shall be in writing and given at the time set forth in the statute, and if it is erroneous so as to injure the accused, the judgment shall be reversed, or if it appears from the record that the accused has not had a fair and impartial trial, his conviction shall be set aside. Acts Thirty-third Legislature, pages 278-279. These statutes limit the authority of the trial court, first, to giving a written charge; second, the charge must set forth plainly the law of the case; third, it must be given after the evidence is introduced and before the argument is begun; fourth, errors, if committed, will require a reversal if calculated to injure the rights of the accused or deprive him of a fair and impartial trial; fifth, it prohibits the judge from discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury (C.C.P., art. 736); sixth, it prohibits the court from giving any charge of any sort in a felony case except in writing; seventh, this charge must bedelivered after the evidence is introduced and before theargument is begun. The charge given by the court as set forth in bill of exceptions, was verbal. It was given before the defendant was even placed upon his trial, and was of such a nature, if given in written charge as required by legislative enactment, it would not be permitted to stand and would necessarily operate a reversal. No lawyer would sustain this act of the court, and no appellate court would dare sanction such a charge if given the jury in his written charge required by the statute on the trial of the case, and yet when this charge was delivered to the jury they were not empaneled, therefore it could not possibly be legal. The court has always held otherwise until the opinion was delivered in this case and in the recent case of Reed v. State. This case is in conflict with the following cases: Jones v. State, 51 S.W. Rep., 949; Attaway v. State, 41 Tex. Crim. 395; Chapman v. State, 42 Tex.Crim. Rep.; Murphy v. State, 57 S.W. Rep., 967, *Page 536 and other cases. My brethren dispose of all these cases by the simple statement that "this case and what the judge said is nothing like what was objected to and held error by the judge of the lower court in said cases." The principle involved in the cases heretofore decided and in the decision of this and the Reed case is the same. There was some difference perhaps in grounds of objection and the language used in those cases from that used in this case, but the mere difference in the language does not affect the principle involved.
Referring to the verbal charge of the trial court we find this language: "But if the juries of the country become lax in this respect, and through lenience, or personal favoritism, overlook cases where the evidence shows wilful violations of the law beyond a reasonable doubt, and points unerringly to the parties being tried as the one who committed the infraction, crime will increase year by year." Suppose this language had been given to the jury in the written charge, would there be any question of the fact that this court would reverse the judgment? No lawyer would affirm that such expressions were right and to be sustained under our constitutional and statutory law. I do not believe my brethren would hold that such language was proper in a written charge given to the jury. Again, take the expression from the verbal charge: "In fact, gentlemen, it requires thirteen men in this court to convict a man, and if the jury should make a mistake and convict in an improper case, this court would unhesitatingly set the conviction aside." It may be noted that a conviction did follow and the accused was allotted a term in the penitentiary, and under the judge's expression that "it requires thirteen men in this court to convict a man," we find that appellant has been convicted and the conviction was not set aside, I suppose upon the theory that the court believed this to be a proper case and not within the category of what he called "an improper case." He evidently did not believe this to be an improper case, but one in which a conviction should be had. My brethren have concurred with the trial court that this was not "an improper case." The jury, therefore, in the opinion of the trial court and majority of this court, did not make a mistake in the conviction, but it occurs to me that the trial court made a serious error in charging the jury verbally as he did charge and before they were empaneled to try appellant. This charge was upon matters calculated to influence the action of the jury, and especially when it tells them substantially to resolve the doubt against the accused on the theory that the court would set it aside if they made a mistake. The court did not set it aside, and if there were mistakes, he did not correct them on motion for new trial. As I understand the law, the doubt is always in favor of an accused when charged with a violation of the law, both as to the law and the facts. If there be a doubt of the facts, that doubt redounds to the benefit of the accused as does the presumption of innocence. These both are legally in his favor and fundamentally underlie our criminal jurisprudence. If there be a reasonable doubt of the facts, then there must be a doubt as to the law, or in other words, the law must be charged to fit all issues in the case, and the presumption *Page 537 of innocence and reasonable doubt of the facts given in charge to the jury upon every issue. This verbal charge, as I understand it, resolved all these matters against appellant. If the jury made a mistake, the court would correct it, he says. This, it occurs to me, is virtually instructing the jury in the trial of criminal cases to resolve the doubt against the accused subject to correction by the trial court if the jury made a mistake in so doing. What effect this may have had upon that jury may be speculative. It can not be told unless we infer what it was by reason of the conviction, but the charge was not the law, and was wrong. It is contrary to the statute, and calculated to and doubtless did influence the jury. Appellant was given a lengthy term in the penitentiary for murder in the second degree. This court and the trial court ought not to speculate as to results when plain violations of the statute law are shown. Various positive enactments by statute were violated by this verbal charge. The fact that the jurors were not challenged for this cause did not cure the error set forth in the verbal charge to the jury given in advance of their being empaneled in the case. Error in charges when in violation of the statutes bearing upon charges to the jury are neither waived nor cured by failure to challenge jurors. These statutes are upon a different subject and not dependent upon the statutes with reference to challenging jurors. Challenges might be interposed or sought to be interposed but that would not change nor affect the law with reference to violations of the statute in regard to charging juries.
There is one other question that I will notice. Appellant raised the question that he was entitled to inspect the veniremen summoned for the term after service upon them by the sheriff. The statute provides that not more than thirty nor less than ten days before the convening of the court the jury list shall be opened and given the sheriff, who shall summon them not less than three days before the convening of court and make his return. The judge intimates that he had been for some time protecting the purity of the jury system of the county by ordering the clerk not to permit lawyers and parties to see a list of the summoned jurors before court. I suppose the theory of the judge was that they might be tampered with or something would happen that might affect them in the discharge of their duties as jurors. The statute does not authorize this action by the court. If the Legislature saw proper to do so and thought it was necessary, doubtless they would have done so, that is, that body would have prohibited parties from getting a list of the summoned jurors, or in any way having access to them. It has been my impression of our jurisprudence as found in the statute that parties were entitled to investigate jurors who were to try them or out of whom the accused was to select a jury, in order that he might inform himself as to who were impartial. The value of this right is recognized and emphasized in the law and is thoroughly understood by the practitioners and courts. It conduces to the fair trial and impartial jury provided by the Constitution. The Legislature has made ample provision to protect jurors from being interfered with or tampered with by providing punishment against anyone who will in any way seek to *Page 538 influence a juror. They who do so are subject to criminal prosecutions and for contempt of court for interfering with or trying to influence jurors. There is no charge or intimation that the accused in this case, or any of his counsel, or his friends, were trying to influence the jury or have anything to do with them. The only demand that was made by the accused was to see the list summoned by the sheriff. I make these few observations as I can not agree with my brethren in the views they have expressed on this question. Of course, if counsel for the defendant or his friends should in any way tamper with jurors, there is a provision made for their punishment. But that does not arise here, for there is no question of that sort. They simply demanded the right to get a list of the jurors in that they might prepare for trial. The view I have expressed in nowise interferes or is in conflict with the statutory enactment which requires the service of special venire in murder cases. That venire is to be served upon the defendant before his trial for a given length of time in order that he may investigate the jurors from whom he is to select a panel to try him.
There are other questions in the case, but I deem it unnecessary to discuss them. Some of them I think show error, but I do not believe this conviction ought to stand in the face of the gravity of the error on the part of the trial court in giving the verbal charge. I therefore respectfully enter my dissent.
ADDITIONAL OPINION. July 14, 1914.