Supplemental Dissenting Opinion. After the filing of the dissenting opinion in this case, the majority deemed it advisable to relate the reasons assigned by the trial court in discharging the juror in question, by quoting verbatim the *Page 368 appended qualification to appellant's bill of exception, made long after trial, concluding with the statement: "The court is of the opinion that he (the juror) is mentally of unsound mind and is disabled from serving on the jury and is therefore excused". It is evident, the conclusion reached by the learned trial judge, a female of the species, is, in the main, based upon the fact that the juror "could not find his hat", on adjournments of court; that he had to be shown his place in the jury box, and that he had become separated from the jury panel. The reasons assigned, thus disqualifying the juror, should not, I think, be accorded judicial sanction by the opposite sex: Jocularly, it is the experience of all of the genus Homo that, at times, even in our homes, in moments of forgetfulness, or carelessness, or in the midst of excitement, we fail to remember "where we put our hats", and are constantly reminded by the partner of the marital union that it is on the customary "hat rack". Seriously, in my opinion, the arbitrary discharge of the juror in this case, for the reasons assigned, is a dangerous precedent in our jurisprudence. It is held generally that, the incapacity of a juror from further service, and the necessity for discharge, are matters requiring a judicial finding, to be heard and determined by judicial methods, and that it is prejudicial error for the court, of its own motion, on mere reports or personal observation, and over the objection of litigants, to determine that a necessity exists requiring the discharge of a juror. In Upchurch v. State, 36 Tex.Crim.R. 624, 38 S.W. 206, 44 L.R.A. 694, the Court of Criminal Appeals of this State, under a statute somewhat similar to our civil statute with reference to the discharge of a juror, in the course of the opinion, said: "* * * conceding that the severe sickness of the wife of a juror is such a circumstance as would authorize the discharge of the jury, — propositions about which we express no opinion, because unnecessary, — still, it was absolutely necessaryto judicially ascertain the fact of sickness before the jury could belegally discharged. This apprehends a judicial finding. It is a step inthe progress of his trial, and an important one, so far as defendant'srights are concerned. * * * Now, in the case at bar the action of the judge was not in open court at all. It was at night, some distance away from the court room, in the absence not only of the jury, but of the prisoner and his counsel. Not only so, but this action was taken on the ex parte statement of an officer of the court that some one had informed him that the wife of the juror Abbott was very sick. Could the court, under such circumstances, make a judicial finding of so important a fact in the progress of this trial, — one which involved the discharge of the jury? If so, the discharge of a juror in any case would appear to be a matter entirely within the arbitrary discretion of the judge, — a power which he could exercise in the absence of the prisoner, and without any judicial procedure to ascertain the fact which would authorize his action. Such arbitrary power would place it entirely within the province of a judge to discharge a jury of his own motion, and without investigation. If, in any given case, he should desire the conviction of a defendant, and it should appear that the jury was not likely to convict, that the state had not entirely made out its case, by his arbitrary discretion he could discharge the jury, and upon a subsequent trial, the state being better prepared, secure a conviction. This was the practice of courts in the days of the Stuarts, but happily not so now. * * * If the court is to find and ascertain the fact which authorizes him to act in discharging a jury, this apprehends a trial, — a trial in open court, in the presence of the accused, and not an ex parte proceeding, at which he is neither present nor consenting." (Italics mine.) So, in the case at bar, the unsoundness of the juror's mind before his discharge, was a necessary judicial ascertainment, and such is not obtained when the trial judge, in a bill of exception, long after the trial of the cause and perfection of appeal, assigns reasons for the discharge of the juror. A trial by a jury of twelve men is a valuable right accorded to litigants by the legislative branch of our Government; and, however laudable the act of the judge may be, in relieving a juror, worried, or sick in mind or body, it is not within the court's power, over the objection of litigants, to discharge such juror, without a trial, reviewable on appeal, to determine the facts of his unfitness. The defendant objected to the discharge, and, in the alternative, asked to be accorded the right to withdraw his announcement of ready, on account of the action of the court. This, at least, I think, presents reversible error. *Page 369