When the opinion was rendered I noted the fact of my nonconcurrence. The majority opinion correctly states the recitals of the judgment of the lower court in regard to the names and number of the jurors who tried the case. An inspection of the judgment shows that there were thirteen jurors who tried the accused. This being true, the verdict is necessarily illegal. The Constitution limits the number of jurors to twelve in all felony trials. Article 5, section 13. To meet this trouble my brethren say: "The verdict as copied into the record purports to be signed as foreman by one who was not in fact a member of the jury." I can not concur in this finding, nor do I understand *Page 593 how this court can know that Eckhart, the signer of the verdict as foreman, did not in fact sit on the jury. The court adjudicated the fact that he did, received the verdict so signed, and had it entered in the judgment and recorded in the minutes of the court for the term. There are no facts in the record in regard to the matter except as stated in the face of the judgment. With the judgment in this condition we are not authorized to impeach its verity. All presumptions are to be indulged in aid and support of the judgment, and that it correctly recites the facts as therein narrated. Just why the foreman should be selected as not having sat on the jury in preference to some other or all other jurors is not apparent. With equal plausibility any or all of the other jurors could have been held not to have sat in the trial. There is no reason that obtains with reference to one juror in the case which would not equally apply to any other juror, unless perhaps the reason would be stronger why the foreman should not be singled out as having sat there by mistake for the reason that he signs the verdict as such foreman, is the most conspicuous juror, and thus speaks for the jury. There is no contention made here that the judgment is incorrect. We are not, therefore, justified in presuming that the judgment is untrue. All presumptions, as before stated, must be indulged in aid and support of the correctness of the judgment, and that it truthfully recites the facts, otherwise there would be worse than legal confusion. Brown v. State, 32 Tex. Crim. 119; Gordon v. State, 29 Texas Crim. App., 410; Escareno v. State, 16 Texas Crim. App., 85; Gorman v. State, 22 Tex. 592; Chandler v. State, 2 Tex. 304. For further collation of authorities see White's Annotated Code of Criminal Procedure, sections 1056, 1053, and 1258.
A party attacking a judgment must overcome such presumptions. In this case there was and is no such attack. Appellant relies upon its verity and the State does not deny its correctness. We can not assume or presume that there was a mistake in reciting the facts. The presumption is that there was no mistake. Under this view of the law the presumption is that there were thirteen jurors sitting on the trial of the case, and this being true, the conviction can not be sustained. Article 1, section 14, of our State Constitution, provides that "the right of trial by jury shall remain inviolate." This provision of the Constitution has been carried into the Code of Criminal Procedure as article 10. For collation of authorities construing this article of the Criminal Procedure see White's Annotated Code of Criminal Procedure under said article 10. Article 21 of the Code of Criminal Procedure provides: "No person shall be convicted of a felony except upon the verdict of a jury duly rendered and recorded." See also articles 743 to 762. It is further provided by statute that a defendant in a ciminal case may waive *Page 594 any right except trial by jury. White's Annotated Code of Criminal Procedure, article 22, and notes thereunder for cases.
The question may be asked, what is a jury in a felony case, and what number of jurors does it take to constitute such jury? The Constitution provides, in article 5, section 13, that a jury in a felony case shall consist of twelve jurors. This provision is carried forward in article 632 of the Code of Criminal Procedure. Under both Constitution and the Code of Criminal Procedure a petit jury must be constituted of exactly twelve men, no more and no less. See White's Annotated Code of Criminal Procedure, section 694, for cases. Art. 5, sec. 13, Texas Constitution. Also Rich v. State, 1 Texas Crim. App., 206; Huebner v. State, 3 Texas Crim. App., 458; Marks v. State, 10 Texas Crim. App., 334; Jester v. State, 26 Texas Crim. App., 369.
From these cases it appeared that the constitutional number of jurors did not sit, and the judgments were held vicious. Analogous to this question is that with reference to the necessary number of grand jurors to constitute the grand jury a legal body to prefer indictments. An inspection of article 5, section 13, discloses the fact that the language is identical as to number of jurors which constitute grand and petit juries. Each shall consist of twelve jurors, no more or no less. The difference in regard to the two bodies is found in the fact that nine members of a grand jury may return an indictment, while in petit juries it takes the unanimous vote of the twelve to return a verdict. Indictments returned by grand juries organized with more or less than twelve jurors have invariably been held invalid when the validity of such indictment has been questioned before the courts. Writs of habeas corpus have even discharged parties under such circumstances from the penitentiary when convicted under indictments presented by a grand jury composed of more or less than twelve. Ex parte Reynolds, 35 Tex.Crim. Rep.; Ogle v. State, 43 Tex.Crim. Rep., 63 S.W. 1012; Ex parte Ogle, 61 S.W. Rep., 122. The parties in these cases were discharged by reason of the fact that the indictment, having been returned by a grand jury composed of more or less, as the facts would show, was rendered vicious. Ogle v. State, 43 Tex. Crim. 219; York v. State, 17 Texas Crim. App., 441; McNeese v. State, 19 Texas Crim. App., 48; Smith v. State, 19 Texas Crim. App., 95; Ex parte Swain, 19 Texas Crim. App., 323; Rainey v. State, 19 Texas Crim. App., 479; Wells v. State, 21 Texas Crim. App., 594; Kennedy v. State, 22 Texas Crim. App., 693; Mays v. State, 36 Tex.Crim. Rep.; Ex parte Ogle, 61 S.W. Rep., 122; Ex parte Reynolds, 35 Tex.Crim. Rep.; Ogle v. State, 43 Tex.Crim. Rep., 63 S.W. Rep., 1012. For further collation of authorities see Ogle v. State, 43 Tex. Crim. 219.
There is no difference as to the requisite number of jurors which it takes to constitute a legal jury, whether it be grand or petit. The *Page 595 Constitution requires twelve in each or both instances. The difference and the only difference then being that, as before stated, a grand jury, after having been organized with the requisite twelve, can work with a quorum of nine, whereas the petit jury must be constituted of the full number, else they can not return a verdict.
Inasmuch as the record in this case solemnly recites that thirteen jurors sat in the case, giving their names, I am of opinion that this court is not authorized to presume that there were less than thirteen, and that the judgment recites by mistake the name of the foreman of the jury. The jury was in front of the court, he organized, impaneled and charged that body, received their verdict, and solemnly adjudicated the fact that the judgment correctly recites the names of the jurors who tried the case, and further, he approved the minutes with the record in this condition. This court, therefore, as I understand the law, is not justified in saying in the face of this solemn judgment, unattacked in any way, that the trial court made a mistake, and that this solemn adjudication is not correct. If this judgment is wrong, its recitals or mistakes are made through oversight, then I would ask what judgment have we in the record and upon what adjudication of the trial court are we called on to base our findings? If the judgment is incorrect and does not recite the truth, and its solemn recitals are to be set aside, then it would follow that we have no judgment of the trial court, but we supply for that court a judgment he did not render. In thus vitiating the decree of the trial court, there would be nothing upon which to predicate an affirmance, and the judgment should in any event be reversed and the cause remanded.
These reasons have been hurriedly given, but I think are manifestly correct. I, therefore, respectfully enter my dissent.