The defendant was indicted at the October term, 1878, of the District Court of Nueces County, for the murder of one Anesto Moreno. He was tried at the same term of the court, convicted of murder in the second degree, and his punishment assessed at ten years’ confinement in the State penitentiary. The casé is now before this court on appeal, and the defendant has assigned the following errors, to wit:
“1. The court erred in refusing to grant the defendant a continuance in this case, on his affidavit and motion therefor.
“2. The court erred in excusing, on its own motion, persons drawn as jurors in this cause, whose names had been served upon the defendant in the copy of the venire from which the defendant was to select a jury.
“ 3. The court erred in this : that a venire of sixty persons, qualified jurors, was ordered by the court for the trial of the cause; that sixty jurors were drawn, and a copy of the venire thus drawn was served upon the defendant; that *353many persons on said venire were excused by the court, on account of disqualifications and exemptions known to the court, without requiring their personal attendance in court and their qualifications tested; and that by such action of the court the number of persons on the venire was reduced below the number required by law and the order of the court for said special venire, and the defendant was deprived of his right to have a venire of sixty legally qualified jurors tendered to him from which to select a jury.
“ 4. The court erred in its ruling as to the qualifications of George Godshall, and thereby deprived the defendant of the benefit of one of his peremptory challenges.
“ 5. The court erred in its rulings as to the formation of the jury in this cause, and thereby compelled the defendant to exhaust his peremptory challenges, and accept as a juror Leonard Webber, who was not an acceptable juror for the defendant.
“6. The court erred in requiring the defendant to pass upon the jury in this case before an arraignment was had in the cause, and in requiring the defendant, after he had accepted eleven jurors, to be arraigned and plead to the indictment, and to accept the jurors then selected, without tendering to the defendant a new venire.
“ 7. The court erred in its instructions to the jury, in that the court did not instruct the jury as to the law of manslaughter and of excusable homicide, the facts of the cause being of such a character as to authorize the jury in finding a verdict of manslaughter or in acquitting the defendant.
“8. The court erred in refusing a new trial in the case on the grounds set forth in the motion of defendant therefor.”
In his application for a continuance, the defendant says he cannot go to trial at this term of the court on account of the absence of the witness Ylario Galvan, who resides in *354Duval County, Texas ; that he caused an attachment to be issued for the witness to Duval County; that he expects to prove by the said witness Ylario Galvan that he (Galvan) was present on the day that the deceased, Anesto Moreno, met this defendant, being the same day that the said Moreno received the wound that caused his death ; that on the said day Moreno was armed with a knife, commonly called a “ belduque,” and that the same was in his belt at the time he met and addressed the defendant; that this witness was present during the entire conversation which took place between the defendant and deceásed, previous to his receiving the fatal wound ; that, on the day following the service of a copy of the venire in this cause upon him, he caused an attachment to be issued to Duval County. The witness is not absent by the procurement or consent of this defendant, and this application is not made for delay.
The court below properly overruled defendant’s application for a continuance. It does not state when defendant was served with a copy of the venire. The indictment was filed on November 8,1878, and the defendant was arraigned on the 19th day of the same month. Our Code of Criminal Procedure provides, that “ no defendant in a capital case shall be brought to trial until he has had one day’s service of a copy of the names of persons summoned under a special venire facias, except when he waives the right. But the service may be made at any time after indictment found, whether before or after arraignment.” Pasc. Dig., art. 3022. The application does not show due diligence to procure the testimony of the absent witness, and is altogether too indefinite as to time. It is further fatally defective in not stating what became of the attachment after it was issued. Process for witnesses must be sued out in a reasonable time, and the application disclose to whom and where delivered. Nothing is to be presumed, in aid of an *355application for a continuance. Bowen v. The State, 3 Texas Ct. App. 617 ; Murray v. The State, 1 Texas Ct. App. 417 ; Townsend v. The State, 41 Texas, 134.
We will consider the second and third errors assigned, together.
It appears from a bill of exceptions taken in the cause, that, on calling the special venire drawn herein" (a copy of the persons’ names had been served upon the defendant), several persons whose names appeared on said venire did not answer to their names, and, the attention of the court having been called to this fact, the court stated that it had excused several of said absentees, on various grounds. The defendant objected to this action of the court in excusing thus, of its own motion, any one who had been summoned on the special venire in this case, without such parties appearing and being examined as to their qualifications ; which objection was overruled by the court, and to which ruling the defendant excepted, and tendered a bill of exceptions, which is bill of exceptions No. 2. “And it further appearing that the following named persons upon said venire did not answer to their names, when called in their regular order, in proceeding to organize the jury to try this case, viz., Julius Henry, George F. Everns, and E. Morris, the court also stated that, of its own motion, it had excused said last-mentioned jurors, on the ground that they belong to a fire company of the city of Corpus Christi, and were exempt from jury-service; to which ruling of the court defendant excepted, and tendered a bill of exceptions,” which bill of exceptions is No. 4. These bills of exceptions were allowed and approved by the court, with the following explanations, to wit: “In the second section of said bill, the parties excused had appeared before the court on other special venires, and had urged their respective exemptions from all jury-service, which were allowed by the court; and the said persons then informed the court that they would claim *356their respective exemptions in every case in which they were called upon to serve, and then asked the court if they would be required to appear on the two next special venires, when they were informed by the court that they would each be excused from attendance, as the court had no authority to compel them to serve.” * * * And section 4 of said bill of exceptions is also explained as follows, to wit: “ The parties named in section 4 had appeared and claimed their exemption, and had been excused under the same circumstances as were those jurors in section 2 above; and said jurors having been informed by the court that they need not appear any more during said court, the list of firemen exempted by law having been filed with the clerk of the District Court, May 19, 1877, and the persons mentioned in section 4 appearing in said list of firemen exempted by law from jury-service.”
We think the court erred in thus excusing any of said venire from attendance, and in informing them that they would be excused. After the attendance of the jurors at the time and place designated in the venire facias, the court could discharge or excuse one or more of them for cause, or because they were exempt from jury-service and claimed such exemption ; but it had no authority before that time to excuse their attendance, as was done in this case. The manner of testing the qualifications of the persons on said special venire, as jurors, is plainly prescribed by the statute. The court is the judge, after a proper examination, of the qualification of a juror, or as to whether or not he should be excused for cause, or because he was exempt from jury-service. In forming a jury in a capital case, the names of the persons summoned should be called in the order they stand upon the list, and, if present, they should be tested as to their qualifications; and unless they are excused for cause, or unless exempt from jury-service, and claim such exemption, or unless peremptorily challenged, should be empan*357elled on the jury. The court has no more power or legal authority to excuse any one of the special venire before his name is called regularly, at the proper time, in open court, to test his qualifications as a juror in the cause, than it has to decide, in advance, any other legal question when the parties are not before the court, or the case called for trial.
The next error assigned is not well taken. The juror Godshall, who is referred to in this assignment, when he was examined touching his qualifications as a juror, stated that he rented a room and boarded. The object of the question to which the answer was made being to ascertain whether he was a freeholder or householder, his answers show that he was a competent juror.
What we have already said disposes of the fifth error assigned.
The record does not sustain the next assignment in regular order. From the recitals in the judgment, it appears that in this case, on November 19, 1878, “ the defendant was arraigned in open court, the indictment read by the clerk, charging the said defenaant with the crime of murder, and he was then asked how he pleaded to said charge, guilty or not guilty; to which he pleaded not guilty, when the case was called for trial.” The judgment further recites that, after the jury were duly tried, empanelled, and sworn in said cause, the indictment was again read to him, charging the defendant with the crime of murder, to which he pleaded not guilty.
The court is required by law, in every case of felony, whether asked or not, to deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case. Pasc. Dig., art. 3059. In this case, the court instructed the jury as to the definition of murder in the first and second degrees, but failed to instruct them as to any of the lower grades of culpable homicide, or as to *358the law of homicide in self-defence. The question, then, is, Was there any evidence before the jury which required a charge upon the law of manslaughter or justifiable homicide ?
If the facts proved create a doubt that the homicide might be a case of manslaughter or of justifiable homicide, then the court, in its charge to the jury, should have given them an opportunity to pass upon that doubt. In a doubtful case, the court must not solve that doubt resting on the facts; for, if it does, and this court affirm the judgment of the lower court, that court and this will decide doubtful facts, and the right of trial by jury will be practically gone. Halbert v. The State, 3 Texas Ct. App. 661; Sutton v. The State, 2 Texas Ct. App. 344; Marshall v. The State, 40 Texas, 200.
So far as appears from the record, there was no person who saw the. defendant and the deceased at the time the fatal shot was fired. Under the testimony in the case, we believe that the court below should have charged the jury on the law of manslaughter and of justifiable homicide. For the several errors pointed out in this opinion, the judgment must be reversed.
There is another question which we cannot pass in silence. The indictment, as copied in the transcript, charges that the offence was committed ‘ ‘ on the twenty-eighth day of November, in the year of our Lord one thousand, eight thousand, eight hundred and seventy-four.” However manifest it may appear that the date of the commission of the offence, as charged in the indictment is a clerical mistake committed in the preparation of the transcript, this court will reverse the judgment when the transcript shows that the offence is charged to have been committed subsequent to the indictment. It is better that the judgment should be reversed, than to establish such a *359precedent, or encourage carelessness in the preparation of so important a part of the record to be brought to this court as the indictment.
The judgment of the District Court is reversed, and cause remanded.
Reversed and remanded.