The appellant was indicted in the District Court of Rusk county, at the January term, 1872, for au assault on one Greenwood, with intent to kill and murder. In 1873 appellant made application for and obtained a change of venue to Smith county.
• The record in the case was filed in the clerk’s office of the- District Court of Smith county in March, 1873, and the cause was placed on the docket of that court. The cause stood on the docket of that court until the 3d day of March, 1875, when the same was, under an order of the District Court, “ transferred to the Criminal District Court in and for the city of Tyler, Smith county, Texas, in accordance with an act to establish a Criminal District *77Court in and for the cities of Jefferson, in Marion county, Marshall, in Harrison county, Tyler, in Smith county, and Palestine, in Anderson county, and defining the powers thereof.”
At the August term of the Criminal District Court of Smith county the appellant was tried, found guilty, and his punishment fixed at confinement in the penitentiary for two years. From this judgment the defendant has appealed to this court. The cause has been argued with unusual zeal and ability, both on the part of appellant and the State, and the importance of the questions involved has induced the court to give the case all the attention deemed necessary to a correct solution of the points involved.
It is claimed that the Criminal District Court had no power to try appellant, and we will first dispose of that question.
Article V, see. 1, of the Constitution, says that “ The judicial power of this State shall be vested in one Supreme Court, in District Courts, and in such inferior courts and magistrates as may be created by this Constitution or by the Legislature under its authority. The Legislature may establish criminal courts in the principal cities within the State, with such criminal jurisdiction, coextensive with the limits of the county wherein such city may be situated, and under such regulations as may be prescribed by law, and the judge thereof may preside over the courts of one or more cities, as the Legislature may direct.”
On the 18th day of February, 1875, the Legislature passed an act creating the Criminal District Court for the city of Tyler and Smith county, and other cities and counties named in the act. (Gen. Laws, 1875, p. 45.) The first section of this act gives to the court created thereby original and exclusive jurisdiction in all felony cases and concurrent jurisdiction in misdemeanors, coextensive with the limits of the several counties where said courts may be *78held. The judges thereof are invested with all the powers of judges of the District Courts.
The same section provides that appeals from that court to the Supreme Court shall be had under the same rules and regulations as are now or may thereafter be provided by law for appeals from the District Courts.
The sixth section provides that trials and proceedings shall be conducted according to laws governing the rules of pleading, practice, and evidence in District Courts, and the regulations of the Penal Code and Code of Criminal Procedure, and all other laws with reference to criminal practice, fines, forfeitures, and to grand and petit jurors, shall be applicable to said court.
The seventh section provides that all criminal business pending in Smith and the other counties named shall be transferred to said criminal court at the first term thereof, and that after that date said criminal court shall have and exercise exclusive jurisdiction and control thereof the same as if originally instituted in said court.
The eighth section provides that the judge of said court may exchange or alternate with any district judge in criminal matters.
The ninth section provides that the clerks of the District Courts, where the criminal court may be held, and the district attorneys in such districts, shall be the clerks and district attorneys of the criminal courts. The salary is the same as that of district judges. The eleventh section provides for a change of venue to the District Court of the county, in case the judge is disqualified.
It is insisted that the act creating the criminal court is in violation of the first section of the fifth article of the Constitution, because it attempts to divest the District Court of its jurisdiction in criminal matters.
By reference to the article quoted, it will be seen that these criminal courts are to have such jurisdiction as may be provided by law, and in an effort to arrive at the cor*79rect meaning of an act of the Legislature, a constitution or an instrument of writing, it will not do to look at any particular clause, section or article, but the whole instrument or act must be consulted. (Cooley’s Const. Limitations, 57; Sedg. on Const. and Stat. Law, 237, 238; 1 Binn. R., 601; Dwarris, 175-8.)
If that clause giving to the District Courts original jurisdiction in all criminal matters stood alone, there would be nothing to construe. It would speak for itself; but it must be construed in connection with the other provision, to wit: that these criminal courts are to have such jurisdiction within certain limits “ as may be prescribed by law.”
It must be borne in mind that the Constitution does not proprio vigore, create these criminal courts. It provided for their creation in case of necessity. It was necessary to create a tribunal with appropriate jurisdiction, and it was done in the creation of the District Courts.
It is believed that it would not be difficult to demonstrate that these criminal courts may be invested by the Legislature with exclusive jurisdiction in all criminal matters within their proper territorial limits, but as it is not necessary to a decision of this cause for us to decide that precise point, we leave it until it'shall properly arise.
The precise question for our determination here is, did the Criminal District Court of Smith county have jurisdiction to try this case ?
It is a principle that has become axiomatic that, when a discretion is confided to any one branch of the government, a decision by that department upon that particular point cannot be questioned or revised.
“ It follows, therefore,” says Judge Cooley, “ that every department of government and every official of every department may at any time, when a duty is to be performed, be required to pass upon a question of constitutional construction.
“Sometimes the decision when made must, from the *80very nature of the 5a.se, be conclusive, and subject to no appeal or review however erroneous it may be in the opinion of other departments or officers. * *
“ Under every constitution cases of this description are to be met with, and though it will sometimes be difficult to classify them, there can be no doubt, when the case is properly determined to be one of this character, that the rule must prevail which makes the decision final.” (Cooley’s Limitation, 40.)
These criminal courts are not inferior courts. They are in one aspect limited in jurisdiction. They are limited in that they take cognizance of criminal matters alone. They are, however, District Courts, qualified by the adjective “criminal,” of equal dignity within their sphere with the District Courts. They derive their being from the same high source, the Constitution. Nor can it be said, because the act of the Legislature creating this court has declared that it should have exclusive jurisdiction in all felony cases, that this would divest it of all jurisdiction. A law is not necessarily void in all its parts because repugnant to the Constitution in some of its features. This is never the case unless the act would be inoperative without the objectionable part. (Commonwealth v. Clapp, 5 Ga., 100; Fisher v. McGirr, 1 Ga., 1; State v. Copeland, 3 R. I., 33; Armstrong v. Jackson, 1 Blackf., 374; Ely v. Thompson, 3 A. K. Marsh, 70; Hamilton v. Dudley, 2 Pet., 526.
The change of venue to Smith county was not sought on the ground of objection to the District Court in Rusk county, nor on account of any peculiar quality or mode of organization of the court in Smith county. It was a community tainted, as alleged, by combinations and prejudices, from which the defendant sought to free himself. He sought no particular court. It was a community in whose midst he could secure a fair and impartial trial that he asked for.
The mode of procedure, the structure of the courts, in *81short, all mere remedies, are objects of legislative control, subject only to these limitations.
The new remedy, tribunal, or mode of procedure, must be equally speedy, efficacious, public, and not more burdensome than those existing at the date of the commission of the offense.
The citizen has no vested right in any particular court or mode of procedure. (Supervisors v. Briggs, 3 Denio, 173; 4 Wend., 210.)
On this subject Mr. Sedgwick says: “ To deny to the Legislature power to make such changes as the social or political condition requires would reduce us to a state of Chinese stagnation and immobility, and would be absurdly inconsistent with the condition of our country and character of our people.”" (677.)
Judge Cooley says, (page 361-2:)
“ The right to a particular remedy is not a vested right.”
“ As a general rule, every State has complete control over the remedies it affords to suitors in its courts. It may abolish one class of courts and create another.”
This proposition, of course, must be understood with a due regard to the organic law.
It was the design of the Legislature to avoid if possible the necessity of organization of grand juries in the District Courts, where the criminal court is held. The jurisdiction of the District Courts in misdemeanors was not taken away because these could be prosecuted without indictment. It is contended that the words “coextensive with the limits of the county ” preclude the idea that the criminal court could take cognizance of a cause, where the offense was committed in another county, even by change of venue. The principal cities were the communities to be provided for, and in order to avoid misconstruction and give them the same jurisdiction exercised by the District Court, so far as territory is concerned, the words quoted above were added.
*82• This is but an embodiment of the common law, for by that law a party was entitled to a trial in the county where it was alleged he had committed the offense. (Story on the Const., § 1781.)
While that is the common law and is to be found in many of the Constitutions of the States, it has never been doubted that it was competent for the Legislature to provide for a change of venue. (1 Bish. Cr. Pro., § 50.) But to give the words alluded to the construction contended for would cut off the right to a change of venue.
We cannot believe that it was the intention of the framers of the Constitution to give to those words the construction contended for by appellant’s counsel, and without extending'these remarks on that branch of the case, we hold that the Criminal District Court for the city of Tyler and Smith county had jurisdiction of this case, and was competent to try the defendant.
It is insisted that one of the jurors had a conversation with a man after the jury had the case submitted to it, and for that the new trial should have been granted. (Paschal’s Dig., art. 3137.)
We are not prepared to say that the remarks that passed between one of the jurors and a man at Thompson’s beef market was such a conversation as was in the minds of the Legislature when that act was passed.
It is believed that the conversation alluded to in the law must be a conversation calculated to impress the case under consideration upon the minds of the juror in a different aspect from the one made upon the mind from hearing the evidence in the court room, or of such a nature as calculated to result in harm to the party on trial.
The conduct of the prosecution is complained of. The law officer of the Government has, by an affidavit, exculpated himself from blame in that matter, and it is possible that those assisting in the prosecution may also be able to free themselves from blame, but their exculpation is not to be found in this record.
*83This is not made a ground for a new trial, and we are not prepared to say, in view of the fact that no postponement of the trial was asked when the two last witnesses made their appearance, that the judgment should be reversed on that ground, and we will content ourselves on this point by quoting from the Supreme Court of Tennessee in the case of Curtis v. The State, (6 Cold. R., 9,) to be found in Cooley’s Const. Limitations, (31, note.)
, “ It is the duty of the presiding officer to treat the accused with judicial fairness, and to inflict injury at the expense of justice is no part of the purpose for which he is chosen.”
“ Unfortunately, however, we sometimes meet with cases in which these officers appear to regard themselves as counsel for the complaining party rather than the impartial representative of public justice.”
“ But we trust it is not often that cases occur like a recent one in Tennessee, in which the Supreme Court felt called upon to set aside a verdict in a criminal case, where, by the artifice of the prosecuting officer, the prisoner had been induced to go to trial under the belief that certain witnesses for the State were absent when in fact they were present and kept in concealment by this functionary.”
One of the grounds insisted upon for a reversal yet remains to be noticed, the improper use of intoxicating liquors by the jurors. The last cause for which a new trial may be granted, set forth in the 7th subdivision, Paschal’s Dig., art. 3137, is: “Or where any juror at any time during the trial, or after returning, may have become so intoxicated as to render it probable his verdict was influenced thereby.” “But the mere drinking of liquor by a juror shall not be sufficient grounds for granting a new trial.”
The code was adopted after the decision of this court in Jones & Jones v. The State, 13 Tex., 168.
That case reviewed the rule in some of the States on this subject, and the court finally adopted the rule laid down *84in Douglass v. The People, in New York, although that case had been overruled. Without undertaking to lay down any rule on this subject for the guidance of future cases, we believe that the record in this case shows such an excess in the use of liquor that it calls for a reversal of the judgment.
It would be difficult to say how much liquor a juror could drink without its influencing his verdict. While strong drink will make some persons gentle, even amiable and charitable, in others it arouses the worst passions of the human soul, rendering the whole mind a cauldron, regardless of human suffering and life, bent only upon destruction, regarding neither friends, the partner of the bosom, nor his tender offspring.
It is pretty clearly established that there were four or five bottles of liquor taken to the jury-room during the deliberations in this case. The affidavit of the nine jurors cannot be regarded as disproving this fact, and their affidavit may fairly be taken as strengthening the idea that liquor was used to excess. If those nine knew nothing of it, it is-the more probable that the others had more than is compatible with a correct administration of the law, and this may account for the jurors leaping and dancing. In order that we may hot be misunderstood, we say that the conduct of the bailiff in charge of the jury in not reporting these irregularities to the court, the conduct of the jury in drinking and separating, and in listening and replying to remarks of a citizen, deserved condemnation and punishment at the hands of the court below; and we hold that the excessive use of intoxicating liquors by the jurors entitled the defendant to a new trial, and because of the refusal of the court to grant it the judgment is reversed and the case remanded.
Reversed and remanded.