Judge Davidson has written an opinion herein and presented it in consultation reversing this case because of the action of the court in not strictly following the statutes with reference to the organization of a jury and special venire, in a capital case. He quotes articles 673, 675, 676, 677 and 696, Code Criminal Procedure, and cites some cases. And, in effect, he holds that the statute on the subject is mandatory and that the court will not stop to speculate about whether injury has resulted to appellant, especially in capital cases under the positive assertions and terms of the said statutes.
As we can not agree with him in his opinion and holding, it is necessary for us to write our views, and, as we believe no reversible error is shown, and no injury to appellant, to affirm instead of reverse and remand the case, as is sought by Judge Davidson.
The appellant in this case was found guilty of murder in the second degree and his punishment fixed at the lowest prescribed by law — five years in the penitentiary.
Appellant's first bill of exceptions to the organization of the jury shows that before appellant announced ready the special venire summoned in his case was called and seven of them did not appear. Their number on the venire list were 2, 11, 21, 33, 36, 42, and 58. What number composed the venire is not shown, but from the bill it is certain that there were more than fifty-eight; that when the judge ascertained the absence of these seven special veniremen he inquired the cause, and the sheriff, and others, told him the absent ones were exempt, either over age, road overseers, pharmacists or some other exemption under the law, and that each of them claimed their exemption. No affidavit was made by either of them that they were so exempt, or claimed their exemptions. None of them were absent because of sickness. Whereupon, the judge excused them, to which appellant objected because no legal excuse had been offered, and the judge had no right to excuse them, because they were exempt, even though their excuse had been made and sworn to at the time they were summoned; that he had the right to have the jurors who were drawn in court that he might test them and hear and know for himself that they were exempt and claimed their exemptions, and that he then demanded that they be brought into court. The court refused this and required him to proceed with the trial.
In qualifying his bill on this point the court stated that he did not exhaust all of his challenges and that the State challenged all the absent jurors.
His second bill shows that in the organization of the jury the jurors' names who had been drawn were called, one at a time and tested on their voir dire; that when the names of the absent jurors were respectively reached, he demanded that they each be brought into court and he declined to proceed further until that was done. The court refused *Page 444 this and stated that he had excused each of them and required him to proceed with the trial with the absent jurors not in court, and without further effort to procure their attendance, which he did.
The court, in allowing this bill, qualifies it by stating that each juror had a lawful excuse and was excused by the court and that the defendant did not exhaust all of his challenges.
The substance of our statutes, including those articles cited and quoted by Judge Davidson regulating the formation of the jury in capital cases, is to this effect: That when the case goes to trial the names of the summoned jurors shall be called at the courthouse door — such as are present shall be seated in the jury box; those absent may be fined, and, at the request of either party, an attachment may issue for anyone summoned not present, to have him brought forthwith before the court. (C.C.P., art. 673.) They shall then be sworn to answer questions on their voir dire. (Article 674.) The court shall then hear and determine the excuses, and if the court deems it sufficient the juror shall be discharged. (Article 675.) Prior to the Act of April 16, 1907, p. 216, there was no way provided by our law whereby an exempt person summoned as a juror on a special venire could avoid actual personal attendance on the court when the case was called for trial. This was such an onerous burden on exempt persons, and such an expense to them, that the Legislature passed said Act of April 16, 1907, which is now article 676, Code Criminal Procedure, whereby it was provided that if such exempt persons thereafter desired to claim their exemptions they might make oath before any authorized officer, or the officer summoning him, stating their exemptions and file such affidavit with the clerk of the court before the convening thereof in which case it shall constitute sufficient excuse, without appearing in person. A summoned venireman can be excused from attending court by consent of both parties. (Article 677.) The court shall then proceed to try the qualifications of those summoned, who are present, to serve as jurors. (Article 686.) When such juror is held qualified he shall be first passed to the State, and then the defendant, for acceptance or challenge. (Article 688.) The State can then peremptorily challenge such juror without assigning any reason therefor. (Article 690.) The State and defendant each are entitled to fifteen peremptory challenges. (Article 691.)
Unquestionably, under our statutes, given above, the State has the right to challenge any juror peremptorily, and the appellant can neither complain nor call for any explanation or reason therefor, from the State. The State's right to thus challenge being absolute, no reason can be called for and no possible injury can result to an appellant because of such challenge. It certainly could not be contended by anyone that the State, having this absolute right, could be required to produce the juror and have him examined on his voir dire or otherwise, and whether he had any excuse at all or not. The State, in this case, as the bill and qualification thereof without question showed, challenged *Page 445 peremptorily each of these seven absent jurors. Then, how can it be possible that appellant was injured in any way by the action of the court and of the district attorney? To have required the court to delay the case, put the State to a great expense to send out over the county and require the attendance of these seven exempt jurors, or whether they were exempt or not, or claimed it or not, and have them quit their homes and their businesses and go to the county seat, there attend upon court, at an expense to each of them, could in no possible way have been any benefit to appellant or violated, to his injury, any privilege he had. And the court, in not requiring this and permitting the State to peremptorily challenge them, violated no substantial right of the appellant and he has shown no possible injury thereby.
There can be no question but that our statute regulating the formation of a jury in a capital case is not mandatory, but is clearly directory only. And this court has uniformly, repeatedly and expressly so held.
The case of Jackson v. State, 30 Texas Crim. App., 664, was a capital case wherein life imprisonment for murder in the first degree was fixed as his punishment. In that case when the special venire was called four of them who had been summoned failed to appear. The defendant, thereupon, asked that the proceedings be stayed and attachments issued to enforce their attendance. This was denied by the court and appellant duly excepted. Then, as the name of each absentee was reached on call of the list, he again claimed a right to have this juror present and again asked that an attachment be issued for him and that he be not compelled to pass upon any venireman, except upon the attendance of the whole list as served upon him. The court again refused his request and compelled him to pass the veniremen who were present and in attendance, to which he again duly excepted. Our statute then was precisely as now on this subject, except the addition of article 676, the said Act of 1907, cited supra.
This court in the Jackson case, through Judge Davidson, said:
"In regard to these absent veniremen, it is shown by the explanation of the learned trial judge to the bill of exceptions that `when the request for the attachment was made by the defendant's attorneys the court inquired of the sheriff the residence, and when he could likely get them into court. He stated that they lived in different and remote parts of the county, some as far as twenty miles from the courthouse; and that it would require two or three days to get them, if they could be got at all.'
"The fact as to the difficulty to secure the attendance of these veniremen as stated by the sheriff was not controverted or attempted to be controverted by the defendant or his counsel. Livar v. The State, 26 Texas Ct. App. 115 [26 Tex. Crim. 115]. This should have been done in order to entitle the defendant to complain of the action of the court. But in case we concede any irregularity or error in the ruling of the court as above complained of, it is not an error of a reversible character, unless it be affirmatively shown by the defendant that injury has inured to him on *Page 446 account of the failure to observe any of the regulations prescribed by the statute for the organization of the jury summoned under the special venire facias. The statutes with regard to the formation of a jury in capital cases are 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. State, 21 Texas Crim. App., 466; Hudson v. State, 28 Texas Crim. App., 323. A defendant can not unreasonably delay a trial on account of the absence of the jurors who have been summoned. Habel v. State, 28 Texas Crim. App., 588." This Jackson case was then affirmed.
Again, in Roberts v. State, 30 Texas Crim. App., 291, in which Roberts was convicted of murder in the first degree and his punishment fixed at a life term in the penitentiary, this court, through Judge Davidson, therein held: "Statutes directing the mode of proceeding by public officers are directory, and are not to be regarded as essential to the validity of the proceedings themselves unless so declared in the statutes. Pocket v. State, 5 Texas Crim. App., 552; Murray v. State, 21 Texas Crim. App., 466; Railway v. Dunlavy, 56 Tex. 256; People v. Cook, 14 Barb., 259, 290; Holland v. Osgood, 8 Vt. 280; Corliss v. Corliss, id., 373; Ex parte Holding, 56 Ala. 458; Suth. Stat. Con., sec. 451; Thompson on Trials, sec. 15."
In the case of Murray v. State, 21 Texas Crim. App., 466, cited by Judge Davidson in both the Jackson and Roberts cases, supra, the defendant therein was convicted of murder in the first degree and the death penalty assessed as his punishment. That case was affirmed. In that case many irregularities were shown without question, in summoning the special veniremen and the return of the officer thereon, and in the copy thereof served on appellant, to all of which he promptly objected and saved his point by proper bills. He insisted that the court committed many radical errors in failing to comply with the requirements of our statute as to the mode and manner of selecting and organizing the jury, that the court did not have the names of those summoned called at the courthouse door and require such as were present to be seated in the jury box, nor did the court afford him an opportunity to apply for attachment for those not present, nor did the court call up and swear or have sworn all those present, or test their qualifications, or their excuses, or afford him any opportunity of knowing who were present in obedience to the venire facias. His objections were that the mode of empaneling the jury by the court was in direct contravention of the provisions of the statute and deprived him of important rights accorded him by law. He insisted that the purpose and intent of said articles 673 to 677, inclusive, of our Procedure was that all those summoned should be sworn in a body and all excuses heard and determined, and their qualifications ascertained and absentees noted so that he would only have a panel of qualified jurors without excuses, in actual attendance, upon whom to expend his challenges and from whom to select his *Page 447 jury; that the mode adopted by the court deprived him of those important rights and necessary privileges, and he was compelled to pass upon each juror tendered him without possibly knowing who of those remaining upon the list were qualified, had excuses or were absent. (This is a substantial statement of these matters from the opinion of Presiding Judge White in the Murray case.) Judge White then proceeds to quote said provisions of the statute, and then for the court, in the opinion, said:
"These are the preliminary steps provided by the law for the preparation of the special venire, so that a jury may be selected therefrom. And there is no doubt but that they should be followed, and that it would be better in practice, in this, as in all cases where the mode of procedure has been prescribed for the State, to follow the rules as adopted for the government and conduct of the trial of her citizens. It is to be presumed that such rules have been adopted for some wise purpose.
"In this instance the learned judge has seen fit to ignore the rules thus prescribed, though his attention was attempted to be called to them by the objections of counsel for defendant, and his action was promptly excepted to at the time, as shown by defendant's bill of exceptions in the record. That his action is in contravention of the statute can not be denied. If it is erroneous, then the judgment must necessarily be reversed. His action is inevitably erroneous if the statutes quoted are mandatory. If not, then the action, whilst it establishes a patent irregularity, is not a reversible matter. Are the statutes mandatory or directory?
"`In respect to statutes,' says Mr. Cooley, `it has long been settled that particular provisions may be regarded as directorymerely; by which is meant that they are to be considered as giving directions which ought to be followed, but not as so limiting the power in respect to which the directions are given that it can not effectually be exercised without observing them.' Again, the same learned author says: `Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time, or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute.' (Cooley's Const. Lim., 4 ed., pp. 89 and 93.)
"In the well considered case of Hurford v. The City of Omaha, the court, amongst others, lays down the following rule as a safe guide in the interpretation of statutes relating to the question under consideration, namely: `That when the particular provision of the statute relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or where the directions of the statute are given with a view to the proper, orderly, and prompt conduct of business *Page 448 merely, the provision may be generally regarded as directory.' (4 Neb., 336.)
"This court, in the case of Wilkins v. State, without attempting to lay down definite rules for determining whether a statute is mandatory or directory, adopted as a safe and sound conclusion the remarks of Judge Moore in the case of Campbell v. State, 42 Tex. 591, to the effect that, `whenever there is reason to apprehend that injury may have resulted to the defendant, especially in a case of felony, from a failure to observe directions given the court by the Legislature, we think, unquestionably, the judgment should be reversed.' (15 Ct. App., 420.)
"In the case we have under consideration, the statutes quoted above relate entirely to matters of procedure, and are directory, and if it were possible that an injury could result from a non-observance of such rules, then no such injury is shown in this record, because the jury, as impaneled to try the case, was selected from the original special venire, which was not exhausted in the selection, and the selection was made in conformity with Article (640) 696, Code of Criminal Procedure (Charles v. State, 13 Texas Crim. App., 658), which is the mode prescribed for the final selection of the jury which is to try the case."
Judge Hurt in Davis v. State, 28 Texas Crim. App., 542, said: "To reverse in the absence of probable injury would be contrary to principle."
It is needless to cite other cases to the same effect. None of these cases cited by us have been overruled, modified or qualified, so far as we know, or have been able to find after diligent search. The whole trend of the decisions is in support of these cases and the trend of all the statutory enactments of the Legislature are also in support thereof. Besides, the principles announced are unquestionably correct.
There is no other material or reversible error pointed out in the record in this case. And as we understand Judge Davidson himself does not contend that there is any such error. Therefore, instead of reversing and remanding this cause, it will be affirmed.
Affirmed.