Appellant cites us to the opinion in the case of Bates v. State, 19 Tex. App. 123[19 Tex. Crim. 123], in which it was held that where twelve men of the special venire were out at the time of the calling of the case, they being on a jury in another case and the special venire was exhausted prior to obtaining a jury, the trial court should have ordered the twelve jurors in the other case discharged and allowed the accused to have had the privilege of a selection from such twelve jurors rather than to have ordered a special venire of twenty-four men to be summoned instanter from which the accused's jury was selected. This opinion was written in 1857 when jurisdiction of criminal matters was lodged in the Supreme Court, and this opinion has been cited in Roquemore v. State, 111 Tex.Crim. R., 11 S.W.2d 316; Thuston v. State, 18 Tex. App. 26[18 Tex. Crim. 26], and Moody v. State, 43 Tex.Crim. R., 63 S.W. 641, as well as other cases. The basis of such opinions seems to be first, an exhaustion of the special venire without the presence of the veniremen engaged in the other case, and second, the presence of talesmen whose names had not been furnished the accused prior to the calling of his case. In the case of Barnett v. State,76 Tex. Crim. 555, 176 S.W. 580, it is said:
"While the jury was being selected from the special veniremen summoned, when the names of three of them were reached, it was shown that they were out as jurors upon the consideration of another case. Appellant demanded that they then be brought in and passed upon. The court refused this, and required the other names on the list to be called and the trial proceeded with. However, the jury on which these jurors were engaged returned a verdict the next day, and thereupon they were examined and passed upon in this case. At another time another name on the list was reached one evening; this venireman had been in attendance until a short time before his name was called. Presuming that his name would not be reached that evening, he left, but returned the next morning. The next morning the court had him called as a juror and examined, and it developed that he had such physical infirmities as to render him unfit as a *Page 228 juror, and the court excused him. To the excusing of him appellant did not object. When the name of another juror was reached on the call, because of his sickness, the court had excused him until the next morning, when he returned. He was then called, examined, and challenged by the State. The court, in qualifying the bills as to these jurors, showed that at the time, their names were called, and he declined to postpone the case until their attendance could be had, and that when they did return and were examined, the appellant had a number peremptory challenges left. In fact, that he did not exhaust his peremptory challenges until the twelfth juror was to be selected, and that he was accepted without any challenge, and he and no other was forced upon appellant as an objectionable juror."
Again, in Jackson v. State, 30 Tex. App. 664[30 Tex. Crim. 664],18 S.W. 643, it is said:
"The statutes with regard to the formation of a jury in capital cases is directory, and not mandatory; and where substantial compliance has been observed, no irregularity or failure upon the part of the court to observe a literal compliance with said statutes will be held reversible error, unless injury to the defendant is shown. Murray v. The State, 21 Texas App. 466; Hudson v. State, 28 Tex. App. 323[28 Tex. Crim. 323]. A defendant can not unreasonably delay a trial on account of the absence of the jurors who have been summoned. Habel v. The State, 28 Texas App. 588."
The reason for the service upon accused of at least one day of the special venire list lies in the fact that he could conduct some investigation of the veniremen thus presented to him as possible triers of his cause. However, upon an exhaustion of such original list, reliance would have to be had upon talesmen brought in by the sheriff as provided by Art. 596, C. C. P., and of whom no time for investigation would be had in the stress of a selection of the jury.
In the cases cited by appellant's diligent attorneys, the regular jury venire, a copy of which had been served upon the accused, was exhausted, and he became faced with the proposition of finishing the selection of the jury from talesmen, a condition not found in the present instance.
There is present in this record a copy of such venire issued by the clerk and served by the sheriff on 120 men and returned by him on August 5, 1947. This cause was called for trial on *Page 229 August 9, 1947, and S. M. Spivey, the twelfth and last juror selected herein was No. 82 on this venire list. There were still present on this original venire 38 more prospective jurors not called. It is apparent therefrom that appellant was not called upon to either accept or reject any prospective juror who had been summoned as a talesman. We can see no ground for an injury to have been suffered by appellant on account of excusing the jurors in the civil cause from this special venire. If any of the jurors taken herein were objectionable to him, he has not so indicated. If such there was, he still had many remaining persons properly selected from whom he could have selected a juror to take the place of the objectionable one, had he so desired.
The motion for a rehearing is overruled.