The appellant was tried and convicted of the murder of W. E. Croxton, the jury finding him guilty of murder in the second degree, and fixing his punishment at confinement in the penitentiary for the term of five years.
We are informed by bill of exceptions that eight jurors were accepted and sworn to try the case, and that one Zack Cash (one of the eight) being informed that there was sickness in his family, the court, upon its own motion, and without first having the consent of the defendant or his counsel (the defendant however not objecting), discharged said Gash from serving as a juror in the case. It is true that the jury was not complete, but, in forming a jury in a capital case, each venireman is tested, and if accepted by both parties is sworn to try the case.
The learned judge appends, in explanation, the following: u The above is allowed, with the following remark or explanation, that up to the time Zack Gash was excused only eight jurors had been elected, and up to that time the defendant had exhausted only six of his challenges. That, after a jury of twelve had been obtained and before whom this case was tried, the defendant had nine challenges left.” The first part of this explanation assumes that until the panel is full, the judge has the *623right, whether there be sufficient grounds or not, to excuse a juror. There is no pretence that a necessity existed such as would warrant the court in taking the juror from the list, nor the panel, if full. The action of the court is rested upon the fact that the jury was not full. The other ground is, if anything, less tenable than the first. That the defendant had not exhausted his peremptory challenges cannot in the least degree affect the question. He had a right to that juror—a right given to him by the law of the land. He may have had fifty peremptory challenges remaining, but we are at a loss to understand in what manner he could have exercised these challenges so as to restore to the eight the excused juror. Challenges are for the purpose of ridding the jury of obnoxious jurors, but can never replace one who has been wrongfully or rightfully excused. Though a juror may be without bias or opinion in the case, indeed honest and perfectly competent in every respect, he may possess qualities which would render him very acceptable to the State or defendant. This fact is looked to with great care in the formation of the jury in almost every case. Again, if the judge can, without necessity, excuse from the fist of veniremen a juror, though not accepted and sworn, the law requiring a special venire and service of copy of the same would be to a great extent thwarted. We have said this much upon this subject in order to express our dissent from the principles announced in the explanations of the learned judge before whom this case was tried.
Qucere: The defendant being present, and informed of the action of the court, and not objecting thereto, is he not estopped from complaining afterwards? Has he waived his right to the excused juror by n®t proclaiming, though not called upon, his objection to his discharge ?
In the Early case a question somewhat similar was ably and exhaustively discussed by our present presiding judge. In. that case the jury had separated. Upon con-*624veiling of the court, the defendant Early was informed of the fact, and called upon by the court to say whether or not the trial should proceed,—the court saying that, if he desired,* the case would be withdrawn from the jury and continued. The defendant Early refused to say anything, whereupon the court ordered the trial to proceed; to which Early excepted. In treating upon that point (the State insisting upon an estoppel) this court say: “Nor could the defendant be required to say whether he waived his rights in the premises. He was on trial for his life, and it was his privilege and right, if he so desired, by declining to say anything or refusing to waive any right, to place himself in an attitude to take advantage of any error committed in the proceedings calculated in any degree to prejudice his case.” Early v. State, 1 Texas Ct. App. 248; 1 Bish. Crim. Proc. sec. 998.
It may be insisted that the defendant should show that an injury has been done him in this matter. This would be impossible, for the peculiar traits of character of the excused juror, which rendered him acceptable to the defendant, can never be shown, and if they could a very wide field of evidence would have to be entered and explored. The principles announced in the Early case and by Mr. Bishop would seem to apply to this case, but the cases are not precisely analogous. We have thrown out these remarks by way of caution, and not for the purpose of deciding the point involved, there being another error which will necessitate a reversal of the judgment.
The evidence in this case tends (whether strongly or otherwise does not affect the principle) to bring this casé under the provisions of arts. 570 and 572 of the Penal Code. Under "the first article, if the homicide was committed for the purpose of preventing murder, etc., it is not required of the slayer to resort to all other means for the prevention of the injury. But under art. 572, if the killing takes place in the protection of the person or prop*625erty against any other unlawful and violent attack besides those mentioned in art. 570, all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed was in the very act of making such unlawful and violent attack. This is the rule, under the last article, applicable to a case in which the party attacked kills his adversary. If, however, the killing is done by another, he is not justified or excused, unless the life or person of the injured party is in peril by reason of such attack upon his property. If the unlawful and violent attack is made upon the person, a stranger has the right to kill under the same restrictions as the party attacked, and no others. But if the killing is to prevent an unlawful and violent attack upon property, to excuse a stranger the life or person of the party injured must be in peril. The record does not present for or require a discussion of the principles applicable to a case in which a stranger kills in behalf of another or his property, but we have thought it proper to make these suggestions.
The learned judge applied the law of art. 570 correctly, but when he attempts the application of art. 572 he blends the two articles. The charge is as follows: “Homicide is justifiable also in the protection of the person against any other unlawful and violent attack besides that of murder, but in such cases all other reasonable means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack, and the attack upon the person of an individual, in order to justify homicide, must be such as produces a reasonable expectation or fear of death or some serious bodily injury.” * * “A person who is thus unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant. Thus if Oroxton was, at the time he received the fatal blow, endeavoring to *626push this defendant into an open cistern, which, had he ■succeeded in doing, would have caused Hill’s death, ór some serious bodily injury, and if Hill believed it to be necessary in order to save his own life, or to prevent upon himself great bodily injury, to kill Oroxton, and if he did kill him, he would be justified in law, provided he used or resorted to every reasonable means at his command in order to avoid this necessity.”
If indeéd the deceased was, at the time he received the fatal blow, endeavoring to push the defendant into a cistern and thereby cause his death, the defendant was not required to resort to every reasonable means at his command in order to avoid the necessity of killing; for the defendant could have been murdered or maimed as effectually by this means as any other. The court should have charged the jury, in effect, that if they believed from the evidence that it reasonably appeared by the words or acts of the deceased that it was the purpose and intent of the deceased to cast or push the defendant into the cistern and thereby murder or maim him, the defendant would be justified in killing the deceased; and in that case he would not be required to resort to all other means before killing. A charge, though not in all respects correct, indicating this principle, was requested and refused. In the charge of the court the rules of law contained in arts. 570 and 572 were not kept separate and distinct, the one from the other. Of this the defendant complained by bill and in his motion for a new trial. We are of the opinion that this error was fatal to the judgment of the court below. Horbach v. State, 43 Texas, 242; Ainsworth v. State, 8 Texas Ct. App. 532; Kendall v. State, 8 Texas Ct. App. 569, and authorities there cited.
The other questions raised are not likely to arise on another trial. For the error indicated,, the judgment is reversed and the cause remanded.
Reversed and remanded.