The appellant was indicted for the murder of’ W. R. Norval, and was tried and found guilty of murder of the first degree, the jury assessing the death penalty.
Counsel for appellant insist that the judgment should be reversed because the declarations of the deceased were admitted in evidence. The record fails to show that the defendant objected to the introduction of these dying declarations. There is no bill of exceptions, nor does an objection appear in any part of the record, save in the motion for a new trial.
Article 640 of the Code of Criminal Procedure requires that each juror shall be tried and passed upon separately; and article 643 provides that, “ as each juror is selected for the trial of the case, the following oath shall be administered to him by the court or under its direction,” etc. The oath must be administered to each juror as selected. This was not done in this case. After twelve jurors had been selected, the proper oath was adminis*316tered to them in a body. Of this proceeding, we learn for the first time in the motion for a new trial. There was no request made by the defendant to have the jurors sworn as selected, nor did the defendant object to their being sworn in a body. The first complaint is heard in the motion for new trial, and in his motion he does not state that he was not aware of these proceedings at the time they were had. These irregularities are now urged here as a ground for reversal. We are of the opinion that they come too late. If the defendant had demanded that the jurors be sworn as selected, and this demand had been refused, we would have been compelled to reverse the judgment. If an objection to their being sworn in a body had been interposed, a very nice question would be presented for our decision; but the defendant did neither.
The question presented is this: Will this court reverse a judgment for these irregularities, when the defendant made no objection at the time, taking his chance of being acquitted by this jury thus sworn/ and holding in reserve this matter to be used in his motion for new trial, and, on failure then, to be used in this court as ground for reversal of the judgment ? We think not.
In Buie’s case, 1 Texas Ct. App. 452, the defendant moved for a new trial upon the ground that the persons impaneled to try him, and who did try him, were not the regular jury summoned for the term, and because none of the regular jury were first called or challenged, and because there is no authority under the law for him to be tried by any except the regular jury, unless the regular jury had been called and challenged.” The court say in that case: “ The objection, in view of these facts, is not tenable. Defendant did not, it appears, challenge either the array or the particular jurors, . . . but accepted the jury as summoned. He by this course waived any right he might have had, and cannot now be heard to complain. Nor could such an error, if such it was, be *317reached by motion for new trial. The only grounds for new trial in a felony case are those enumerated in the statute.”
In Hasselmeyer’s case, 1 Texas Ct. App. 690, the accused moved in arrest of judgment on the ground that the names of the jurors were not drawn by the clerk as required by the jury law", but were drawn by the judge. Held, that the objection should have been made by challenge to the jury when impaneled, and is not available in arrest, or for new trial. See also Yanez v. State, 6 Texas Ct. App. 429; Reed v. State, 1 Texas Ct. App. 1; Bowman v. State, 41 Texas, 417. We think the principles enunciated in the above cases apply with equal force to this case.
One James Mayberry was indicted in a separate bill for this same murder. After the trial and conviction of the appellant, the State entered a nolle prosequi in the case against James Mayberry. The appellant, Caldwell, in his motion for new trial, relied, among other things, upon the affidavit of Mayberry, which is to this effect: “ That about twenty or thirty minutes after the shooting, the witness met the defendant about one-half mile from the place of the homicide, and that the defendant told the witness that he, defendant, had broken the law, that he would not have done so if Mr. Nor val had not cut at him with a knife three times.” The facts immediately attending the killing are not of that character as would make this statement of witness competent evidence. The State did not rely upon circumstantial evidence to prove that defendant killed Norval, but, on the contrary, this - was shown by positive evidence, describing the homicide minutely. And when the facts which immediately attended the homicide are looked to, there is not the slightest probability of the truth of the statement of the defendant. While the writer is of the opinion that, under a certain state of case, these statements may be admissible, though *318made at the time and distance from the homicide that these were made, this is only the opinion of the writer, and must not be construed as that of this court. See West’s case, 7 Texas Ct. App. 150.
We have examined the evidence most carefully, holding in view the awful consequences, and have been unable to come to ■ any other conclusion than that reached by the jury. That the appellant killed the deceased Norval, and with express malice, there can be no doubt, if it be possible for evidence to place this issue beyond doubt. Looking at the whole record, and being aware of the great ability and skill of the learned counsel who defended this unfortunate man, we are thoroughly satisfied that he had a fair trial.
There remains to us, therefore, the imperative duty of affirming the judgment, which is accordingly done. The judgment is affirmed.
Affirmed.