All of the men summoned on the venire for the week were disqualified and excused by the court except three. The appellant requested the court to fill the panel before requiring him to exercise his peremptory challenges, at least to put enough men in the box to constitute a jury if no challenges were exercised. This motion was overruled, and appellant was required to pass upon the three jurors without any knowledge as to the identity of the talesmen that would later be called and upon whom he would be required to pass. He asserts in his bill that one of the three jurors was objectionable but that he was deterred from exercising the peremptory challenges upon him by the fear that there might be talesmen who would be more objectionable. A closer examination of the cases to which we adverted in the original opinion reveals the fact that all of them were cases in which there was a sufficient number of veniremen in the box to constitute a jury. In other words, those cases support the proposition that if after excusing the disqualified jurors in a case in the County Court there remains as many as six, or in *Page 660 the District Court there are as many as twelve, the accused cannot demand that others be put in the box before exercising his peremptory challenges. In the Speiden case (3 Texas Crim. App., 156) there were eighteen men in the box, and in West's case (7 Texas Crim. App., 150) there were twenty-one men in the box. These were felony cases, and in the case of Logan v. State (55 Tex. Crim. 180), a misdemeanor case, there were seven men in the box. In each of these cases, the demand by the appellant that the panel be filled was rejected and properly so. The statutes upon the subject (Arts. 703, 704, 705, 706, and 708, C.C.P.) we believe are expressions of the Legislative intent and direction that if in a County Court there be less than six jurors in the box, that talesmen must be called so that there will be at least six men from whom to select a jury before the accused shall be required to exercise his peremptory challenges. Article 706, supra, reads thus: "If the number of jurors be reduced by challenge to less than twelve in the District Court, or six in the County Court, the court shall order other jurors to be drawn or summoned, as the case may be, and placed upon the lists inplace of those who have been set aside for cause."
Article 704, C.C.P., reads thus: "When there are not as many as twelve names drawn from the box, if in the District Court, or, if in the County Court, as many as six, the court shall direct the sheriff to summon, etc."
In Article 708, C.C.P., it is said: "When a juror has been challenged and set aside for cause, his name shall be erased from the lists furnished the parties, and when there are twelve names remaining on the list not subject to challenge for cause, if in the District Court, or six names, if in the County Court, the parties shall proceed to make their peremptory challenges, if they desire to make any."
The construction of these statutes for which appellant contends we believe is that which accords with that given by this court in the case of Davis v. State, 9 Texas Crim. App., 634. At all events, it seems clear upon the reading of the statutes, particularly Article 708, supra, that the statutory law requires that there be, in County Court cases, six men in the box before the accused may be called upon to exercise his peremptory challenges. The procedure in the instant case was contrary to this and the other statutory provisions mentioned, and the bill of exceptions shows that the appellant was diligent in endeavoring to induce the court to proceed in accord with the statute.
Upon a reconsideration of the record we think that the failure of the court to do so was error requiring a reversal of the judgment.
The motion for rehearing is therefore granted, the affirmance set aside, the judgment reversed and the cause remanded.
Reversed and remanded.
*Page 1