Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty years; and he appeals.
Two distinct theories are presented in the case. The State's testimony shows an unprovoked and deadly assault on the part of defendant A.L. Clay, and his brother E.G. Clay, on the deceased, Brady, and his two companions, Helman and Ogden. Appellant's theory was self-defense, and his testimony suggested an unprovoked and deadly assault on himself and his brother E.G. Clay, by deceased, Brady, and his companions, Helman and Ogden.
Appellant reserved a number of bills of exception to the action of the court with reference to the summoning of the special venire and the impanelment thereof. A special venire of sixty men appears to have been properly drawn in the case under the direction of the court. The sheriff undertook to summon them by addressing to each of said jurors, at his postoffice, a postal card, informing him that he had been drawn on said special venire, and the day the case was to be tried, and postal card, addressed to the sheriff, which said venireman was instructed, in the said postal received by him, to tear off and mail *Page 602 back to the sheriff, notifying him that such juror was served. The return of the sheriff was made up from the replies so received, — merely showing on its face that the jurors so notifying the sheriff had been served. Out of said list of sixty, sixteen appeared, twenty-five did not appear, and sixteen had been excused by the court, and three were returned "Not found." As stated above, the return, on its face, only showed a regular service in the ordinary way, according to the statute. Appellant made a motion to quash the venire, setting up the facts, and asked that the sheriff be required to amend his return, stating how said service was made. This motion was refused by the court. Appellant also offered to make proof of how said service of the venire had been made. This, also, was refused by the court. Appellant presented this same matter in a bill of exceptions when the special venire were presented in court, and he was required to pass on same, setting up the same facts substantially as presented in his motion to quash. In this connection the court offered to have an attachment issued for each of said jurors who appeared to have been served, but were not present, and who had not been excused by the court. Appellant objected to this, unless he should be furnished with a list one entire day before he was compelled to pass upon the same. The court explains this bill by stating that the list showed that all of said special venire had been served except three, and the defendant objected to said venire because it had been summoned by postal card. And the court offered to have process issued for said defaulting jurors, and defendant objected because they had not been legally summoned. The Court further states that the sheriff did actually summon in person all of the jurors who failed to appear in answer to the original service, but how many actually came into court, the court had no record of. The court did not wait for the absent veniremen, but had talesmen summoned, whom the defendant was required to examine and pass upon without reference to whether the absent veniremen had been summoned or not. When the special venire had been exhausted, the court ordered the talesmen. When these were brought in, the same objections were urged, to wit, that appellant had never been confronted with a special venire summoned according to law, and that he should not be compelled to go to trial until he had a legally summoned venire. So it seems that, in every conceivable way, appellant insisted that a special venire had never been legally summoned in his case; and we are accordingly presented with the question whether in a case in which the law guaranties to a defendant a trial by special venire, he is entitled to have same summoned according to law. Article 650, Code of Criminal Procedure, reads as follows: "The sheriff or other officer executing the writ shall summon the persons whose names are upon the list attached to the writ, to be and appear before the court at the time named in such writ, which summons shall be made verbally upon the jurors in person." The succeeding article requires the officer to return the writ promptly on or before the day the writ was made returnable, stating the names of those who had *Page 603 been summoned; and, if any names are on the list that have not been summoned, the return must state the diligence which has been used to summon them, and the cause of the failure. A copy of the list as returned by the sheriff shall be made out and certified by the clerk and served on defendant at least a day before his case is called for trial. And it has been held that, unless this is waived, it is mandatory. Burries v. State,36 Tex. Crim. 13. If appellant is entitled to a special venire, he is entitled to have one drawn and summoned according to our statutes on the subject. The service of the venire in this case illustrates the necessity of adhering to the plain letter of the statute in summoning the list as drawn. The article quoted above requires a personal service by the sheriff on each juror drawn on the special venire. Not only so; if he fails to make the summons on any particular juror, he is required to state the diligence used to procure such juror. In this case no attempt was made to follow the statute, but an absolutely new departure was made, unknown to and unauthorized by the law. As a result, no obligation rests upon those who were written to, to attend the court; and we find that but few obeyed the summons, — no doubt, from knowledge of the fact that they were not required to obey such service. Out of the total list of sixty, but sixteen were present, when ordinarily there should have been at least fifty present on the special venire, from which to draw a jury. The great majority of them were absent. It is not a question of prejudice, for it would be difficult to show prejudice under such circumstances. Nor is it a response to the proposition to say that appellant was furnished with a fair and impartial jury. However this may have been, it was not the tribunal erected and provided by law for his trial. And if the court can abrogate the statute, as was done in this case, he can do it in every instance; and instead of furnishing the defendant with a special venire as provided by law, the court may furnish a defendant with a jury selected by the court, and not through the legal machinery as required by our statutes on the subject. It is not necessary here to discuss the importance to a defendant in a capital case of being tried by a jury of his peers as provided by law. Its importance is too well recognized to require discussion or authority, and all of out statutes in this connection are made as safeguards to preserve it; and to hold that the jury as summoned in this case, and who responded to the summons, was a legal venire, would be to undo and destroy the procedure provided by law, and to authorize another mode of summoning the jury in it capital case. We are not now discussing a case in which all of the special venire as drawn were present. Here only sixteen out of a total of sixty attended the trial. We hold that the service made by the sheriff in this case was tantamount to no service at all, and that appellant was, in effect, deprived of a special venire, which the law guaranties him.
The court excused a number of jurors in the absence of appellant. If we could consider that appellant was furnished with a special venire, *Page 604 of course there was no authority on the part of the court to excuse such special veniremen in the absence of appellant. Livar v. State, 26 Texas Crim. App., 115.
It appears that appellant took the stand in his own behalf, and was examined in chief, and cross-examined by the State, and stood aside. Subsequently he was recalled by the State, and asked "if he did not, on the night of the homicide, a short time before, near the place of the homicide, when he and his brother were going in a certain saloon, — if he [defendant] did not try to make one Broadhurst treat, and if he did not catch Broadhurst by the arm, and say to him, 'Set 'em up, you damn son of a bitch.' " And further he was asked "if a short time before that, in a restaurant on the same night, his brother, E.C. Clay, did not say, in his presence, to a certain party that 'we are out on our toughness tonight.' " This was objected to on the ground that it was incompetent for the State to put him back on the stand and prove these matters by him; that, his examination having been closed, to again put him on the stand was to make him a witness against himself, and, besides, the testimony elicited was not germane to his examination in chief, and was also objectionable, as his testimony did not concern the homicide. With reference to the first objection (that is, "that it was not competent to put him on the witness stand again"), we know of no rule that would make any distinction between him and any other witness; and it is allowable to call a witness back who may have been previously examined, in order to lay a predicate for the impeachment of such witness. We do not regard the testimony as irrelevant. On the contrary, in our opinion, it was original, testimony, tending to show the condition and state of mind of appellant immediately preceding the homicide. It was competent for the State to show the movements of the defendant and his brother shortly before the homicide. There was a sharp issue between the State and the defendant as to who provoked and brought on the difficulty; the State's testimony showing that defendant and his brother, acting together, brought it on, and defendant's testimony tending to show that deceased and his companions brought it on. All the evidence indicates that whichever side provoked it was actuated by a reckless disposition, and utterly disregardful of the rights of others. As illustrative of this, and as tending to support the theory of the State, it was competent to show that defendant and his brother, who were shown to be acting together in the difficulty, were together before the difficulty, were drinking and carousing, and manifesting a turbulent and lawless disposition; and the testimony admitted, as we understand it, tended to show this state of things. More than that, the testimony on the part of the State shows that defendant and his brother, as they approached deceased, remarked, "Yonder are the sons of bitches now." The testimony admitted and complained of shows that, some fifteen minutes before, appellant and his brother were treating witness Broadhurst in a violent and lawless manner, and endeavored to make him treat, and called him a "son of a bitch," and that he escaped from them *Page 605 and ran out of the saloon. This testimony is suggestive of what subsequently occurred when these parties approached deceased and his companions. In our opinion, the testimony was admissible.
Appellant raises a number of questions as to the charge of the court, but, in the view we have taken of the case, we deem it unnecessary to discuss the questions therein raised. For the error discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.