Appellant was convicted of robbery, and his punishment assessed at confinement in the penitentiary for a term of thirty years; hence this appeal.
There is only one assignment of error that need be noticed. This involves the action of the court, as presented in bill of exceptions number 2, in refusing to try appellant with a special venire, but instead *Page 238 forced him to trial before the regular jury for the week. We copy from the bill as follows: "The defendant, Austin Farrar, by his attorneys, moved the court as follows: `Come now the defendant, Austin Farrar, in the above entitled and numbered cause, and here now before the impanelment of a jury requests and moves the court to issue its order for the convention of a special venire of not less than eighty good and lawful jurors to serve herein,' — which motion was by the court overruled, and to the action and ruling of the court in overruling said motion the defendant then and there excepted at the time by counsel. Defendant, furthermore, not only demanded verbally and by motion in writing the right to be tried by a special venire, but also claimed and asserted his legal and constitutional right to one day's service of a copy of the names of persons summoned under a special venire, before being tried, which said right was refused, and was in consequence compelled to go to trial by the regular jury selected for the week; to which action and ruling of the court defendant then and there excepted," etc. Which bill is approved with the following qualification by the court: "The request for special venire was not made until after the motion of defendant for continuance had been overruled and the jury called into the box." It will be seen from this that the court based his refusal to allow appellant a special venire on the fact that his request was not made until after the motion of defendant for continuance had been overruled and the jury called into the box. This was a capital case, as the indictment charged the robbery to have been committed with firearms (see Ex parte Epps, 35 Tex. Crim. 406), and therefore appellant was entitled to a special venire unless he waived it. This he did not do, unless it be conceded that his failure to call for special venire prior to the overruling of the motion for continuance was a waiver. In Houillion v. State, 3 Texas Crim. App., 537, it is said: "If appellant remains silent as to a service of the special venire, and when called upon pleads to the indictment, and suffers the trial to proceed without objection, taking the chance of being acquitted by the jury, he will be presumed to have waived his right to a service of a copy of the same as provided by law." But in that case there was a special venire. Articles 643 and 644 of the Code of Criminal Procedure regulate the procedure with reference to the obtention of a special venire, the first authorizing an application by the State, and the last article authorizing an application on the part of the defendant. In Hall's case, 28 Texas Crim. App., 146, it appears that an order for special venire was made by the court on appellant's verbal motion without affidavit. So it would seem that the form of the motion is not regarded as essential. However that may be, it occurs to us that the fair interpretation of articles 642-681, Code of Criminal Procedure, is intended to provide the character of venire from which a jury in a capital case is to be selected, and that the obligation is cast upon the State in the first instance to ask for this special venire. The machinery for the trial of a capital case is provided by law, and it is the duty of the court primarily to see that the proper tribunal is selected. *Page 239 We hold, if the State has not acted in the matter of securing a special venire, and if the court has not taken the steps to provide for this tribunal, it is appellant's right to object to being tried by any other than a special venire at any time prior to his agreeing to be tried by the regular jury. Of course, if he raises no objection, and no special venire has been summoned, and the regular jury for the week is called into the box, and he proceeds to the selection of jurors from this panel, he may be regarded as having waived his right to a special venire. But here, as we understand it, when he was first confronted with the jury, after his motion for continuance was overruled, — that is, when the jury for the week was called into the box, — he objected to being tried by that body, and insisted on a special venire. We hold that his objection was in time, and that there was no waiver of his right to a special venire. See this question discussed in Burries v. State, 36 Tex.Crim. Rep.. "The law guaranties to persons charged with capital offenses the character of tribunal authorized and appointed by law to try them;" and because he was refused such a tribunal by the action of the court the judgment is reversed and the cause remanded.
Reversed and remanded.