The appellant was indicted for the murder of one Gabe Leonard, alleged to have been committed in the county of Fort Bend, on March 2, 1878. On the trial below he (the appellant) was convicted of murder in the second degree, and his punishment was assessed at confinement in the penitentiary for a term of seven years.
It is insisted on the part of the appellant that several errors were committed by the court in serving and calling-the special venire summoned for the trial, the most material of which will clearly appear from an explanation made by the judge to one of the bills of exception, as follows : “ The *357names on the original venire and on the list (served on the •defendant) were identically the same in number and names, but several were different in the order as they appeared on the •original and the copy. As the names so different in their •order (there being several) were called from the original writ returned into court, the defendant objected on the ground that they did not appear in such order on the list furnished him, whereupon the court directed that the names be called in the order as upon the list furnished defendant; to which defendant objected on the ground that he did not want to expose hi’s list. Thereupon the court stated that he could call the names himself, and he excepted. Thereupon the court stated that unless he allowed the names to be called in the order as they appeared on his list, or called them himself (that is, informed the sheriff of the order), the names would be called from the original writ. The •defendant then gave the names in the order they appeared •on his list, under protest, and so they were called, and so the jury was empanelled. The defendant only exhausted five peremptory challenges in empanelling the jury.’’ From this statement of the causes of disagreement between the ■court and the counsel, it seems that after the special venire had been summoned, the clerk, in preparing a list of their names for service on the defendant, placed the names so that they did not stand in the same order on the two lists •of jurors, — the names, however, being the same in both lists.
As matter of practice under the Code of Procedure as it now exists, when a special venire shall have been ordered for a capital case, the names are to be drawn as designated in art. 610, and to be summoned as directed in art. 613. “The officer executing the writ shall return the same promptly on or before the time it is made returnable. The return shall state the names of those who have been summoned ; and if any of those whose names are upon the list have not been summoned, the return shall state the diligence *358that has been used to summon them, and the cause of the failure to summon them.” Art. 614. Art. 616 directs the clerk and sheriff as to their duties on receiving the list so summoned, as follows: “ The clerk, immediately upon receiving the list of names of persons summoned under a a special venire, shall make a certified copy thereof, and issue a writ commanding the sheriff to deliver such certified copy to the defendant, and such sheriff shall immediately • deliver such copy to the defendant and return the writ,, indorsing thereon the manner and time of its execution.” From a reading of these articles of the Code, it is manifest, that the law contemplates that there shall be no material difference in the two lists, —that summoned by the sheriff,, and the certified copy thereof prepared for service on the defendant.
Art. 618 and following articles direct the course of procedure in forming the jury for the trial of a capital case, and, among other things, direct that the names of those summoned as jurors in the case shall be called at the courthouse door, and such as are present shall be seated in the jury-box; and unless some one or more of the causes of challenge or excuse provided be interposed, it is from the names of those summoned as jurors in the case, and who are present on call and are seated in the jury-box, that a jury is to be formed, if a sufficient number be found fertile trial of the case. The order of calling the names of the jurors is prescribed in art. 640, in this language : “In-selecting the jury from the persons summoned, the names-of such persons shall be called in the order in which they appear upon the list furnished the defendant.” It is manifestly the intention that it.is from the list furnished the defendant that the call is to be made, and in the order the names stand upon that list. So that, in the controversy between the court and the counsel, the result was that the names of the jurors were called from the proper list, and in the order there found, as appears from the record; and *359there was no material error to the prejudice of the defendant in providing or in the manner of selecting the jury.
A question is raised as to the sufficiency of the charge of the court on an issue of insanity, set up for the defendant on the trial. The charge of the court was excepted to, and special charges were asked which the court declined to give on the ground that the law was properly given in the general charge. The following is found in the general charge of the court: “Among other defences made in this case is insanity created by jealousy and other conditions of the mind growing out of the infidelity, or suspected infidelity, as the case may be, of the wife. In this connection you are charged that only a person with a sound memory and discretion can be held punishable for a homicide, and that no act done in a state of insanity can be punished as an offence. Every man is presumed to be sane until the contrary appears to the satisfaction of the jury trying him. He is presumed to entertain, until this appears, a sufficient degree of reason to be responsible for his acts ; and to establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act the party accused was laboring under such defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing, or, if he did know that, he did not know he was doing wrong, —that is, that he did not know the difference between the right and wrong as to the particular act charged against him. The insanity must have existed at the very commission of the offence, and the mind must have been so dethroned of reason as to deprive the person accused of a knowledge of the right and wrong as to the particular act done. You are to determine from the evidence in this case the matter of insanity, it being a question of fact, controlled, so far as the law is concerned, by the instructions herein given you.”
On a comparison of this charge with standard elementary writers on the subject of insanity as a defence for crime, *360ancl with adjudications of the courts of this State, we are of opinion that the charge, with reference to insanity generally, as well as the particular insanity or emotional derangement of the mind set up in the case, was a substantially correct enunciation of the law of the case, and as favorable for the defendant as the testimony warranted. Whart. Cr. Law, sects. 15-24; 1 Archb. Cr. Pr. & Pl. 4-4, 4-5, and note 1; Carter v. The State, 12 Texas, 500; Penal Code, arts. 39, 40; Webb v. The State, 5 Texas Ct. App. 596, and authorities there cited; Williams v. The State, 7 Texas Ct. App. 163.
It is urged in argument that if the facts proved established any offence at all, it was manslaughter and not murder. This matter was fairly submitted to the jury under a seemingly appropriate instruction from the court. We cannot say that the homicide was proved to have been committed at the first meeting or the first opportunity after the conduct of the deceased and the wife of the defendant became known to him, or that the testimony does not warrant the verdict and judgment. Finding no error in the judgment, it is affirmed.
Affirmed.