In concurring in the opinion affirming this case, I wish to call attention to articles 656 and 657 of the Code of Criminal Procedure. Article 656 reads: "When there is pending, in the District Court a criminal action for a capital offense, the district or county attorney may, at any time after indictment found, on motion either written or oral, obtain an order for a special venire to be issued in such case." Article 657 provides, where the State has not applied for a special venire, the defendant may apply, and reads: "The defendant in a capital case may also obtain an order for a special venire at any time after his arrest upon indictment found, upon motion in writing, supported by the affidavit of himself or counsel, stating that he expects to be ready for trial of his case at the present term of the court."
In this case the State made no application for a special venire. The defendant made none until the case was called for trial. He then filed an application which was not sworn to by anyone, and neither he nor his attorney did file an affidavit in connection with the application that the defendant expected to be ready for trial. *Page 91
A special venire is not a matter of right in a capital case, but may be obtained only under the conditions named in the statute, and those conditions the defendant did not comply with in making his application. It is the better practice that application, when a special venire is desired, be made, therefore, prior to the day the cause is set for trial, and in sufficient time to allow it to be drawn and summoned. Where one waits to make application until the case is called for trial, and the State has announced ready for trial, it seems to be but an effort to postpone or continue the case after all the witnesses have been to the trouble and expense of attending court, and should not and will not be favored, and the court did not err in overruling the application in this instance, for the application did not comply with the provisions of the law. The writer is of the opinion, also, it came too late, unless some reason is shown why it was not filed in time to permit a special venire to be summoned.