delivered the opinion of the court.
John Henry Miller was convicted on a charge of murder in Coahoma county, from which he appeals.
The main point urged for reversal is that the accused was denied his right of a trial by a legal jury, under the Constitution and law1. This point is decisive of the appeal.
Here is what happened in the trial court: The jurors were sworn to answer questions as to their qualifications on the voir dire examination. After it apeared that twelve jurors were qualified to sit in the case, they were accepted by both the state and the defendant. Immediately following the acceptance of the jury, the testimony" for the state and the defendant was introduced, *36and both, sides rested. At this juncture the court took a recess for about two hours, and on reconvening the instructions were passed upon. It was then discovered and made known for the first time that the jury had not been sworn “to well and truly try the issue between the state and the prisoner, and a true verdict give according to the evidence and the law.” Whereupon the court then and there proceeded to swear the jury to try the issue joined as required by section 1483, Code of 1906. To this action of the court the accused then and there objected, and moved the court to enter a mistrial in the ease, which was overruled by the court. The case then proceeded with the argument, and the jurv returned a verdict of guilty.
It is contended bv the appellant that the failure of the court to swear the jurv before.it received the testimonv in the case was an error which resulted in the defendant being denied a trial by a legal jury, that is, a iurv dulv impaneled! and sworn to try the issue joined; that the evidence in the case was heard by twelve men not under oath to consider the evidence and trv tbe issue between the state and the defendant, and that therefore, a sworn jury as contemplated by the law did not hear anv of the evidence in the case, or, in other words, that the case was tried, so far as the rtrnof was concerned, before there Was a sworn jury to hear it.
The state; answers the proposition in several wavs; First, that the jury was sworn to try the issue when it took the oath to answer questions as to its qualifications ; second, that the jury laws are directory, and no complaint can be made as to the failure of administering- the oath to trv the issue, and also that it does not apnear affirmatively that the error was harmful to the accused, and that the' verdict of the jury cured the error, if any there was.
*37It will he observed that under section 1483, Code of 1906, “the jnrors in a capital case shall be sworn to ‘well and truly try the issue between the state and the prisoner, and a true verdict give according to the evidence and the law.’ ” This was a capital case, and undoubtedly the statute is applicable.
Under section 2718, Code of 1906, it is provided that: “All the provisions of law in relation to the listing, drawing, summoning and impaneling juries are directory merely; and the jury listed, drawn, summoned or impanneled, though in an informal or irregular manner, shall be deemed a legal jury after it shall have been impaneled and sworn.”
We are convinced that under the circumstances' in this case the appellant was denied his right of a fair trial by a legal jury, impaneled and sworn to try the issue between the state and the prisoner. The preliminary oath administered to the jurors, before the voir dire examination, for the purpose of ascertaining their qualifications as jurors, was certainly not an oath to try the issue joined between the state and the accused, as specifically required, by the statute in capital cases.
It seems clear to us that there is a marked distinction between the oath to answer questions as to qualifications and the oath to hear, consider, and try the issue of guilt joined between the state and the defendant. Therefore it is undoubtedly true that the twelve men in this case heard all of the evidence, while they were still an unsworn jury to try the issue joined. The jury heard no evidence whatever after it had been sworn to try the issue, involving life and liberty, between the state and the accused, and consequently the verdict it returned was based upon no evidence whatever that was heard by the jury while it was under oath to hear and consider the proof and try the issue of guilt between the state and the prisoner. >
*38A verdict thus resting upon no proof that was heard after the jury became a legal, sworn jury, but based upon what the twelve men had heard before they were sworn to try the issue as required by the statute in such cases, was not a verdict founded upon proof received by a legal jury.
The case had already been tried, so far as the evidence was concerned, before the jury was sworn to consider the proof and try the issue joined. When the jury heard the testimony they were but little more than mere spectators, listening to the witnesses, since they were not under oath to try the issue joined; they did not receive the testimony while they were bound by the sanctity of the oath required in capital cases.
After the jury was sworn to answer questions as to qualifications, it was then necessary under the law that they also take a further oath that they would try the issue joined according to the evidence and the law, and until they took the latter oath they were not a legal jury to try the issue, as contemplated by the law. So, the proceeding, after the oath to try the issue was finally administered, was erroneous because the legal jury then had no evidence before it upon which to act.
The statute which declares that the jury laws are merely directory does not mean that an accused, especially in a capital case, may be denied his right to. a legal jury in any essential and fundamental respect, when timely objection is made before the verdict is rendered. Would the directory statute sanction a verdict rendered by a jury composed of eleven men? This statute is not to be so liberally construed as to deprive the prisoner of his fundamental and substantial right to have the jury hear, consider, and try his case under the solemn oath to try the issue joined.
Furthermore, the directory statute plainly provides in the last- line quoted that a jury “shall be deemed a legal jury after it shall have been impaneled and *39sworn. ’ ’ The jury in this case were not sworn to try the issue joined, as section 1483-, Code of 1906, specifically provides shall he done in capital cases.
Even if it he conceded that the jury was impaneled When it was sworn to answer questions as to qualifications on its voir dire, still it was then only impaneled, and not yet sworn to try the issue as required by the statute. Therefore the jury, not having been both impaneled. and sworn as required by both the directory statute and the capital case statute (section 1483’, Code of 1996), it was not a legal jury, and could not legally h^ar and consider the testimony, which it did hear and consider for several hours, before being sworn to try the issue in the case. Testimony introduced under these circumstances is not evidence upon which a jury can act, even though it is subsequently sworn to try the issue joined and render a true verdict on the testimony it heard before it was a legal jury. .
In Howard v. State, 80 Tex. Cr. R. 588, 192 S. W. 770, L. R. A. 1917D, 391, a Texas case, the court said: “It has been the law in Texas, both by Constitution and statute, that an accused is entitled to a trial by a jury. It has not been held, so far as we have been able to discover, that a j'ury could possibly be a jury until it has been sworn to try the particular case. It is not a trial by jury, for, as Judge Simpkin said a jury cannot be said to be impaneled until it has been sworn.
If it be true that a j'ury is not a jury to try a case until sworn, as the authorities hold, then appellant was tried by a jury unsworn.”
We are constrained to disagree with the argument of the state with reference to the proposition that the error was harmless and did no substantial injury to the rights of the accused. We are unable to see how such a conclusion can be safely reached. To say that the jury gave the same careful and conscientious consideration to the evidence when they heard it while *40not acting under the sanctity of an oath as they would have given had they been bound and obligated by. a solemn oath would be to enter the field of speculation, and to so decide would be to say that this court could look into the minds of the jurors and determine with certainty that the effect of a solemn oath upon them would have made no change in the conscientious manner in which they received and considered the evidence offered in the case. It would seem to be more probable, in such a case, that the sanctity of an oath would have its bearing and influence upon the jurors in their consideration of the proof before' them.
But aside from all this, the Constitution and the law of our state guarantees that the accused in a capital case shall have a legal jury to sit as triers of the fact in his case; and, in order that the prisoner be afforded such legal jury, it must be impaneled and sworn to try the issue joined between the state and the prisoner, and a true verdict-render according to the law and the evidence, as specifically required by the statutes heretofore mentioned. This was not done, and for the error committed the judgment of the lower court is reversed and the ease remanded.
Reversed and remanded.