Appellant was convicted of rape and his punishment assessed at ten years in the penitentiary.
The sole question herein is whether the action of the court in denying appellant's motion for a special venire, under the circumstances of this case, presents reversible error.
The statute (art. 656, C.C.P.) authorizes the prosecuting attorney in a capital case, on motion either written or oral, to obtain an order for a special venire. Article 657 is: "The defendant in a capital case may also obtain an order for a special venire at any time after his arrest upon an indictment found, upon a motion in writing, supported by the affidavit of himself or counsel, stating that he expects to be ready for the trial of his case at the present term of the court."
Appellant's only bill of exceptions shows, in substance and effect, that when the case was called for trial the State announced ready. That before he announced ready he made a motion stating that he was charged with rape and under the law entitled to a special venire from which to select a jury. He thereupon moved and prayed the court that such venire be selected and summoned and he be furnished a list in order that he may be tried as provided by law. This motion was in no way sworn to as the statute above quoted requires, either by himself or his attorney. The State objects to this motion, and claims it is wholly insufficient because it is not sworn to. However, it seems that upon consideration of it, it was agreed between the district attorney and the trial judge that the State would waive capital punishment and agreed that the court might submit to the jury as punishment, in the event he was found guilty, confinement for life or any term not less than five years, and would not submit to the jury, or authorize them to inflict the death penalty. The court so charged. We think it reasonably certain from the bill and record that this, while not expressly shown to have been agreed to by appellant, was in effect agreed to by him and the trial proceeded, for he, thereupon, announced ready, a jury was selected from the panel of the week which in no way was then or *Page 90 now complained of by him. The court's charge as to the penalty stated to which there was then and is now no objection whatever by him.
It is the settled law of this State, so held in a great many and a long line of decisions, that our statute regulating special venires, the formation of juries in capital and all other cases, are merely directory and not mandatory. Murray v. State, 21 Texas Crim. App., 466; Hudson v. State, 28 Texas Crim. App., 323; Roberts v. State, 30 Texas Crim. App., 291; Jackson v. State, 30 Texas Crim. App., 664; Bizzell v. State, 72 Tex. Crim. 442, and cases therein cited. The statute (art. 22, C.C.P.) expressly provides that 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. He can waive a special venire. Hamilton v. State, 3 Texas Crim. App., 643; Farrar v. State, 44 Tex.Crim. Rep..
We think it clear that by the appellant's action herein he waived his right to a special venire and that he and the State, and the court acted upon this at the time. As stated, he did not even make a motion for a special venire until after the case was called for trial and the State had announced ready. He doubtless acted upon the judge's and the district attorney's agreement that the jury should not be authorized to inflict the death penalty. If he had resisted this agreement and objected to being tried by the regular jury and persisted in his insistence for a special venire, a different question would be presented, but he did nothing of the kind, as shown above. As presented, no reversible error is shown. The sentence herein is for ten years imprisonment. It should have been in conformity with our indeterminate sentence statute. The clerk of this court will enter the proper judgment of sentence. As thus reformed, the judgment will be affirmed.
Affirmed.