Only one bill of exceptions appears in the record, and that was saved to the ruling of the court with regard to the impaneling of the jury to try the case. It appears that a special venire of forty-eight jurors had been ordered and summoned, and Ave presume that a copy of the list had been furnished the defendant, though the bill does not so state. It alleges, hoive\Ter, that the special veniremen were all present in the court-house, and that all Avere qualified jurors. When the names of the special venire Avere being called for the purpose of selecting the jury, five of the parties Avhose names appeared on the list failed to answer, and the court refused to have them brought into the jury box to be passed upon as their names Avere called in the order in which they stood, though the defendant requested it. The reason given by the court for not having them brought in and passed upon was that each of the five parties named on said special venire Avere, at the time, upon a jury in another felony case, upon Avhich they had been impaneled and Avhich they Avere trying before the present case was called for trial, and that they were, at the time their names were called, locked up in the jury room, as jurors on the other felony case, considering of their verdict in said case. That, to call them out and have them passed upon in this case Avould break up the other jury, should any one of them be selected upon this one. Out of the remaining names on the special venire only nine jurors were *32selected when the list was exhausted, and the court, over defendant’s objection, ordered the sheriff to summon twenty talesmen from whom the defendant was required to fill up the jury, and defendant’s challenges were all exhausted before the panel was complete.
In his explanation to the bill of exceptions, the learned judge states that he was not asked to delay the case until the jury in the other case had found their verdict and reported the same; and he states that the jury in the other case upon which these five jurors were, did not report their verdict in that case until after the jury in this case was completed and sworn.
Article 617, Code Criminal Procedure, provides that no defendant in a capital case shall be brought to trial until he has had one day’s service of the copy of the names of the persons summoned under a special venire facias; and article 640, Code Criminal Procedure, provides that, 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. (Clark v. The State, 8 Texas Ct. App., 350.)
The court has no right, in advance of the selection of the jury from the special venire, to excuse any of the jurors so summoned, and they cannot be excused until they have appeared at the time and place specified in the venire facias, and until their names are called and tested in the order in which their names appear on the venire facias. (Robles v. The State, 5 Texas Ct. App., 346.) Of course where they do not appear or are not present when their names are first called, the case is not to be unreasonably delayed on account of their absence, but the remaining names may be called and passed upon, and when the absentees do appear before the jury is completed, they may be tried and impaneled, if not challenged, as would have been the case in the first instance. (Code Crim. Proc., art. 640.) And if upon the call of the list a juror is absent, and it be made to appear satisfactorily that his absence is from sickness or other unavoidable cause, the court may undoubtedly excuse his attendance. But, as stated above, the court cannot excuse in any instance, if not present, until his name has been called, nor then, unless the cause is unavoidable or the defendant consents. (Code Crim. Proc., art. 621; Hill v. The State, 10 Texas Ct. App., 618; Foster v. The State, 8 Texas Ct. App., 249.) At the request of either party an attachment may issue for any person summoned who is not present, to have him brought forthwith before the court. (Code Grim. Proc., art. 618.) When, however, from any cause there *33is a failure to select a jury from those who have been summoned, a new venire may be ordered by the court (Code Crim. Proc., art. 012), and though an attachment might be out for some of the original veniremen, that should not unreasonably delay the completion of the jury out of new talesmen summoned.
The object of the law in requiring a copy of the names of the original special venire to be served one day before trial upon the defendant is to enable him the better to exercise his right of challenge upon those summoned. This right, as said by Wheeler, J., in Bates v. The State, which was a case presenting almost the identical question we are considering, “ is a valuable right which is not to be denied the accused. It is true it may be defeated, in whole or in part, by the non-attendance of the jurors; and, doubtless, after their attendance, the court may discharge one or more of them for cause. But it will be readily admitted that the cause which will excuse ought not to be occasioned by the action of the court in derogation of the prisoner’s right, but by something over which the court had no control; as the sickness of the juror, or a member of his family, or some such matter. Por such causes the court might discharge a juror, though the effect should be to prevent the prisoner from selecting him upon the jury. But surely the court ought not, by its own action, to place the jurors in a situation which itself would constitute an occasion for afterwards discharging them and denying the prisoner the right of selecting his jury from the list furnished him.” (19 Texas, 123.)
The impaneling of these five jurors upon the jury of another felony trial, after they had been summoned in this case, was the action of the court itself, and was not in any sense a casualty over which the court had no control. As further said in Bates’s case, supra: “ The jurors summoned for this case ought not to have been charged with the trial of another until regularly discharged from this; and if, from inadvertence, they had been impaneled for the trial of another case, they should, when called in this, have been at once discharged from the consideration of the other case, or the trial should have been postponed until they were discharged.” The case which these jurors were already trying being a felony case, the proper practice would have been, in this instance, to have postponed the impaneling of the jury in this case until they were legally discharged from the consideration of that. The right of the defendant in the premises was not compromised or waived by his failure to ask a postponement of the trial.
The charge of the court was not excepted to, nor were any addi*34tional instructions in behalf of defendant requested. In the absence of special requested instructions, it appears to us to have presented the case fully for the consideration of the jury. Appellant in his brief complains that there was error of omission in the charge, in that it failed to instruct the jury that they “ should receive the confessions of the defendant with great caution.” Whilst the rule seems to be a general one that the confessions of the defendant should be received with caution (Gay v. The State, 2 Texas Ct. App., 128; Walker v. The State, 2 Texas Ct. App., 326), yet, to have charged the jury to that effect in the manner indicated by appellant’s counsel, would have been a charge directly upon the weight of evidence, and in contravention of the statute.
For the error of the court with regard to the impaneling of the jury, as above shown, the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
[Opinion delivered April 18, 1885.]