The defendant was indicted in the Criminal District Court of the county of Harris, on June 13, 1877, for the murder of Joseph W. Brown. The indictment charges that the murder was committed on May 25th of the same year. He was tried at the February term, 1878, of said court, convicted of murder in the first degree, and his punishment assessed at death.
A motion was made for a change of venue, supported by the affidavits of the defendant and of five other citizens of Harris County. The change of venue was asked upon the ground of prejudice in Harris County against the defendant. In order to determine the truth and sufficiency of the grounds alleged, the court caused the affiants to be sworn touching their means of knowledge of the facts stated in their affidavits. Then nine other citizens, from different parts of Harris County, were called by the State, and were sworn and examined for the purpose of negativing the allegations of the supporting affidavits. The court, after weighing the direct and counter-affidavits, overruled the motion.
The case of Noland v. The State, 3 Texas Ct. App. 598, *383is decisive of the question as to the change of venue. We make the following extract from the opinion of the court in that case, to wit:
“ Applications of this character must of necessity be confided, under the law, to the discretion of the judge who presides at the trial; and unless it should be made to appear that this discretion has been abused or arbitrarily exercised, and to the prejudice of the accused, or so as to deprive him of some legal right, this court would not be warranted in interfering with his action. Still, such action is subject to revision on appeal.”
While it is the duty of the court to guard well all the rights of the defendant in a criminal case, it is not required, nor would it be good policy, to exclude well-established facts bearing upon the motion, nor to compel the court to change the venue at the mere whim of a person charged with crime. When an application is made for a change of venue in a criminal case, on account of local prejudice, it is not erroneous, but is eminently proper, for the judge to receive the sworn statements of reputable citizens, to aid him in the exercise of the discretion confided to him by the law. It certainly cannot be error for the judge to hear evidence for and against the application, and fully inform himself of the condition of the public mind in the locality. After a careful and dispassionate examination of the conflicting evidence upon the motion to change the venue in this cause, we believe that the presiding judge did not err in overruling the motion.
The second error assigned is that “the court erred in refusing to quash the second venire facias.”
After the original venire facias, upon which were returned sixty names, was exhausted, the sheriff was ordered to summon sixty other jurors, which he did, and, having returned a list of their names, defendant, by his counsel, moved the court to quash the venire facias, “ because all *384the persons so summoned resided in the city of Houston, where it had been shown great prejudice existed now, and had existed, against the defendant, and requested the court to direct the sheriff to go out of the city limits, to the country, in the county of Harris, and summon jurors;” which the court refused to do.
By this ruling of the court the "defendant was deprived of no legal right. It does not appear from the record that the defendant’s counsel asked the court to instruct the sheriff, in summoning these men, to go to the country for jurors, when he was ordered to summon sixty other jurors. The defendant’s counsel does not state that any of the jurors were summoned in the court-house, or in the court-house yard. After the exhaustion of. the second venire of sixty men, the jury still not being complete, the court ordered the sheriff to summon thirty-five men, competent jurors, and directed him to go to the country for them. The mere fact that the court so instructed the sheriff, when ordered to summon this last venire of thirty-five men, does not show why such order should have been given to the sheriff before. We do not believe that the second assignment of error is well taken.
In selecting the jury, Mr. Ed Milby was called, and, upon oath, examined touching his qualifications to serve as a juror ; and, in reply to questions propounded by the defendant’s counsel and the court, stated as follows: “I read the evidence, published in the newspapers, that was taken or heard in this cause when Grissom applied for bail, and formed an opinion at the time as to his guilt or innocence, and I remember what my conviction was on the subject, but do not now remember the evidence, but do remember the opinion I then formed. I do not think the opinion then formed would influence my action in finding a verdict. I think I would be controlled by the testimony I heard on the trial; but if the testimony was the same as I read, my conviction *385would be the same, and it would require other testimony to change the impression I received' from reading the testimony.” The State having accepted the juror, the court declared the juror competent, and required the defendant to pass upon him ; whereupon the defendant excepted to said ruling of the court, and peremptorily challenged the juror. Upon the trial of the cause the defendant exhausted his peremptory challenges to jurors. This action of the court in declaring Mr. Ed Milby a competent juror, and which caused the defendant to peremptorily challenge him, is made the third assignment of error. After a careful examination of the authorities, we believe that Mr. Ed Milby, by his answers, showed himself to be a competent juror.
An opinion as to the guilt or innocence of the defendant, formed from newspaper accounts alone, and which, in the belief of the person so expressing it, would not have any influence on him in the trial of the cause, does not disqualify him to sit as a juror. The ruling of the court in passing upon this juror was in full accord with decisions in most of the American courts of last resort. It is in vain, in the presence of a telegraph that throbs with every beat of the world’s life, and a daily press to register each pulsation, for courts longer to expect ignorance of a notorious fact combined with general intelligence. Ignorance of a matter made notorious by publication will seldom be found where sufficient discrimination exists to detect falsehood from truth. The rapidity with which information is conveyed, and the haste to place it before the public, involve so much uncertainty and inaccuracy in its statement that experience soon instructs the reader, and the impression formed fades at once before the living witness. An impression so left is practically harmless, and at this day a theory which rejects such jurors cannot be sustained in practice.
The Supreme Court of Pennsylvania, in the case of Staup v. The Commonwealth, says: “At the present day, when *386newspapers, railroads, and telegraphs have made intercommunication easy, 'and when reporters are alive to every occurence, and the daily press eager to serve up the details of crime, the difficulty of obtaining jurors free from those wide-spread influences has made courts less ready to listen to this cause of challenge. In the contrariety of opinions prevailing, it is needless to look abroad for precedents, but rather to be guided by the reason lying at the bottom of the right of challenge. The great purpose of this right is to secure a fair and impartial trial. Chief Justice Marshall said, in the trial of Aaron Burr for treason, that ‘ the court has considered those who have deliberately formed and delivered an opinion on the guilt of the prisoner, as not being in a frame of mind to weigh the testimony, and, therefore, disqualified to sit as jurors in the case.’ 1 Burr’s Trial, 367. Chief Justice Taney laid down the following test, says Mr. Wharton, in his treatise on Criminal Law (sec. 2981) : ‘ If the juror has formed an opinion that the prisoners are guilty, and entertains that opinion now, without waiting to hear the testimony, then he is incompetent. But if, from reading newspapers or hearing reports, he has an impression in his mind unfavorable to the prisoner, but has no opinion or prejudice which will prevent him from doing impartial justice when he hears the testimony, then he is competent.’ ” 74 Penn. 460. See, also, Thomas v. The People, 67 N. Y. 218.
Whenever the opinion of the juror has been formed upon the evidence given in the trial at a former time, or has been so deliberately entertained that it has become a fixed belief of the prisoner’s guilt, it would be wrong to receive him. In such a case the bias must be too strong to be easily shaken off, and the prisoner ought not to be subjected to the chance of conviction it necessarily begets. But when the opinion is founded on rumor, or newspaper reports, which the juror says will not influence his action in finding *387a verdict, and that he can fairly try the prisoner on the evidence, freed from the influence óf such opinions or impressions, he ought not to be excluded. If exclusion must follow from such unsettled convictions, it would frequently be no easy matter to obtain a jury.
This court, during its present term, in the case of Hardin v. The State, has already passed upon the question raised by defendant’s objections to the mode of conducting the examination of jurors touching their qualifications as jurors. Ante, p. 350. The fourth assignment of error was not well taken.
The court did not err in refusing to give the instructions asked by the defendant. The presiding judge had already given such a charge as would enable the jury to apply the law to every legitimate deduction which could be drawn from the facts adduced in evidence. Some of the instructions asked had been substantially given in the main charge of the court, and others were not applicable to the evidence. This, as shown by the evidence, was either a case of murder or of homicide in self-defense. A charge on the subject of manslaughter would have been improper. There was no evidence before the jury requiring such an instruction.
This, in our judgment, brings us to the most material question presented in the record. The sixth error assigned is that “the court erred in permitting the jurors H. R. Allen, T. W. Cronin, A. Teichman, and Henry Addicks, after they had been accepted as jurors, to separate, on the night of February 26, 1878, as shown in motion for a new trial and affidavits thereto appended, and filed herein.”
On February 26, 1878, as appears from the record, the venire being called, and the jury not having been completed, the court proposed to allow the four jurors selected to separate, under instructions from the court; and counsel for the State consenting, and the defendant’s counsel an*388swering that he interposed no objection, H. R. Allen, T. W. Cronin, A. Teichman, and Henry Addicks, who had been selected to serve as jurors, were allowed to separate, under instructions from the court, until the next morning at ten o’clock, to which hour the court adjourned, and a special venire for sixty jurors was ordered to issue. On the morning of February 27th, after the court was opened, the said four jurors who on the evening before were permitted to-separate, under instructions from the court, being present, were sworn to answer questions truly, and being asked by the court if they, or either of them, had had any communication with any one upon the subject of this case, answered that they had not; and if their minds were in the same condition as to this case as when they separated on yesterday, and having answered that they were, the court then tendered counsel for the State and defendant an opportunity to further examine them if they saw proper, and, no objection being made, they were instructed to resume their seats ; whereupon the district attorney, for the State, said, in open court, that he would make no objection to setting aside the four persons heretofore named, if desired, to which the court said defendant, by himself or counsel, was not required to answer, unless he saw proper. And, there being no answer, the call of the venire was proceeded with; and the record shows that the said Allen, Cronin, Teichman, and Addicks were four of the twelve jurors that tried this cause.
Counsel for the State, in their able oral arguments and their briefs; insist that the four jurors named had been accepted, but had not been sworn to try the case, and that until they had been sworn to try the case, the law did not require them to be kept together; and that the separation of a jury in a felony case, by consent of parties, does not vitiate a verdict.
We believe that when the jurors were accepted by the *389State and. the defendant, they were impaneled; that when impaneled, they should have been kept together, in charge of an officer, and not allowed to talk with any other person, except in the presence, and by permission, of the court; and that they should not have been allowed to separate by consent of counsel on both sides.
The Code of Criminal Procedure provides as follows:
“Article 3070 [Pasc. Dig.]. After a jury has been sworn and impaneled to try any felony case, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with consent of the district attorney and the defendant, and in charge of an officer.”
Article 3072. “ The sheriff shall take care that no person converse with a juryman after he has been impaneled to try a criminal action, except in the presence, and by permission, of the court.”
When a man is on trial for his life, as was said by this court in the case of Early v. The State, 1 Texas Ct. App. 277, there should be no room for doubt as to the purity and integrity of the verdict. It should be above suspicion, and command entire confidence. The opportunities for improper influences, even if not improved, were so great that they will be presumed by the law in favor of human life. In a case of such magnitude the convenience of jurors is not to be consulted, and the defendant should not be deprived of the safeguards that the law throws around all persons being tried for crime, to secure them a fair and impartial trial. All defendants alike should have a fair trial, according to the laws in force, and then, when they are convicted, the judgment should be affirmed. But if the record, on appeal, in any case of felony, shows that a defendant has been deprived of any legal right, the verdict and judgment of conviction should be set aside and a new trial be granted.
It is true, in the case at bar there was no effort made by *390the defendant to show that the four jurors who were allowed to separate after they were impaneled were tampered with, or influenced unfavorably towards him, during their separation ; nor was it incumbent on him to show that such were the facts, in his application for a new trial. It is sufficient to-show that an opportunity existed for such misconduct, which the record herein most conclusively and abundantly does show. In the administration of justice, it sometimes happens that public clamor demands of the courts, not a just and impartial administration of the law, but aid in securing, through legal forms, some victim to popular indignation. As was said in the case of Morgan v. The State, 31 Ind. 196, by Ray, J.: “It were better that the mob-should execute its will, terrible as the alternative may be, than that a judge should yield one right secured to the prisoner by the law. The court, when the excitement is-passed, will retain the public confidence in its due and proper administration of the law—a loss of which would be irreparable. The excess of popular violence, although it cannot correct the injustice it may have worked, will bring an assured repentance.” .
We believe that the court erred in refusing the defendant a new trial on account of the separation of the four jurors; and for this alone the judgment must be reversed and the-cause remanded.
Reversed and remanded.