On Motion for' Rehearing
WOODLEY, Judge.We remain convinced that Senate Bill 33, Ch. 2, p. 2, Acts 54th Leg., is unconstitutional and that Art. 2094 V.A.C.S. providing for thq drawing of jurors for the term from a jury wheel is applicable in Guadalupe County.
The State, in its motion for rehearing, directs our attention to the fact that appellant was indicted for murder with malice, and that the.jury was selected fr.om a special venire in accordance with Chapter 2 of the Code of Criminal Procedure.
Arts. 591, 592 and' 593 of said Chapter relate to the drawing of special venires.
Articles 591 and 592 V.A.C.C.P. read as follows:
Art. 591 V.A.C.C.P.“In all counties having a population of at least fifty-eight thousand (58,000), or having therein a city of twenty thousand (20,000), or 'more population, as shown by the preceding Federal Census, and in every county in this State, which comprises a part of two (2) Judicial Districts, each of which Districts consists of' fofir (4) *80and the same four (4) counties, which four (4) counties have a combined population of not less than one hundred and thirty five thousand (135,-000) according to the last preceding Federal Census, whenever a special venire is ordered; the District Clerk, in the presence of,' and under the direction of, the Judge, shall draw from .the wheel containing the names of the jurors, the number of names required for such special venire, and prepare a list of such names in the order in which drawn from the wheel, and attach said list to the writ and deliver same to the Sheriff. The cards bearing such names shall be sealed in an envelope and kept by the Clerk for distribution,. as herein provided. If from the names so drawn, any of the men are impaneled on the jury and serve as many as four (4) days, the cards bearing their names shall be put by the Clerk in the box provided for that purpose, ánd the cards bearing the names of the men not impaneled shall again be put by the Clerk in the wheel containing the names of the eligible jurors. As amended Acts 1955, 54th Leg., p. 572, ch. 188, § 1.”
Art. 592 V.A.C.C.P.: “Whenever a special venire is ordered in counties not included within the provisions of the preceding article, the name of each person selected by the jury commissioners to do jury service for the term at which such venire is required shall be placed upon tickets of similar size and color of paper and the tickets placed in a box and well shaken up; and from this box the clerk, in the presence of the judge, in open court, shall draw the number of names required for such special venire, and shall prepare a list of such names in the order in which they are drawn from the box, and attach such list to the writ and deliver the .same to the sheriff. Acts 1905, p. 17; Acts 1919, p. 62.”
The remaining method of drawing a special venire is found in Art. 593 V.A.C.C.P., which specifically provides that it shall not apply to “counties under the Jury Wheel Law.”
Guadalupe County has a population of less than 58,000 and contains no city with a population of 20,000 or more.
It comprises a part of two judicial districts composed of the same four counties, but the combined population of the four counties, Guadalupe, Lavaca, Gonzales and Colorado, does not approach the minimum population (135,000) set by the 54th Legislature in Art. 591 V.A.C.C.P., wherein they provide for the drawing of special venires in counties composing two four-county judicial districts.
Guadalupe County, it will be seen from the above, is not one of the counties in which a special venire is to be drawn from a jury wheel under Art. 591 V.A.C.C.P.
Art. 592 V.A.C.C.P. relates to the drawing of a - special venire from the list of jurors for the term selected by jury commissioners, and by its terms applies in counties “not included within the provisions of the preceding article”.
The selection and drawing of the special venire in this case appears to conform strictly with the provisions of Art. 592 V.A. C.C.P. The jurors for the term selected by jury commissioners were used in drawing the venire, as provided in said Art. 592 V.A. C.C.P. This is so despite the fact that the jurors for the term were not drawn from the wheel as required by Art. 2094 V.A.C.S.
It appears that there was no way by which the court could have complied literally with both Art. 2094 V.A.C.S. and the provisions of the Code of Criminal Procedure regulating the drawing of a special venire. This is a criminal case, and Art. 591 V.A.C.C.P. is the latest expression of the Legislature on the matter of drawing a special venire.
Assuming that jurors for the term during which appellant was tried had been selected from a jury wheel, as we hold was the procedure which should have been followed, what provision of the Code of Criminal *81Procedure provided the method for the drawing of a special venire? Not Art. 591 V.A.C.C.P., for Guadalupe County did not come within its terms. Not Art. 592, because the jurors would not have been those selected by a jury commission referred to in said Art. 592. Not Art. 593, for this article specifically provides that it shall not apply to counties under the jury wheel law.
A defendant charged with a capital offense has a right to a special venire. Arts. 587, 588 and 589 V.A.C.C.P. The jury wheel being the authorized and proper manner by which to secure jurors for the term, it appears that because Guadalupe County is included within the provisions of Art. 2094 V.A.C.S., but does not come within the terms of Art. 591 V.A.C.C.P., there is no specific statutory provision under which a special venire can be drawn in Guadalupe County. Under these circumstances, trial by jury guaranteed by the Constitution will not fail.
We have reached the conclusion that the court had the inherent power to provide for a special venire, following the procedure designated by statute so far as possible. Since he could not comply strictly with both Art. 2094 V.A.C.S. and the provisions of either Art. 591, 592 or 593 V.A. C.C.P., the court had the authority to organize the jury in the manner he did. In doing so he violated no provision of the Code of Criminal Procedure, and no injury to appellant is shown.
The case of Taylor v. State, 87 Tex.Cr.R. 330, 221 S.W. 611, appears to support our holding that the fact that jurors for the term were selected by jury commissioners is not alone ground for reversal of this conviction.
In addition to the attack upon the special venire, appellant urges two further grounds for reversal.
Appellant’s confession was admitted in evidence which included the following statement: “I was talking to Aurelio Mares and he told me I could not go back inside unless I paid, and while I was talking to' Aurelio Mares, Jose Sauceda came up to me and hit at me, saying to get out of there, or get away from there.”
Appellant excepted to the court’s charge because it failed to instruct the jury on the law of exculpatory statements.
The basis upon which appellant claimed the right to such charge was the portion of the confession above quoted.
Appellant testified as a witness in his own behalf and his testimony was to the same effect as the part of the confession claimed to be exculpatory. The issue of self-defense raised by such testimony was fully presented to and passed upon by the jury.
Under these circumstances there was no error in the omission of a charge on exculpatory statements. See Perez v. State, Tex.Cr.App., 271 S.W.2d 281, and cases cited.
The remaining ground for reversal is the admission of the confession over the objection that the warning was not given by the person to whom the confession was made.
The confession recites that the required warning was given by E. J. McCord and that the statement was made to him.
The evidence shows that the confession was reduced to writing (typewritten) by the county attorney, C. A. Pape, who asked some questions.
The record shows that E. J. McCord was present at all times while the confession was being made; that he warned appellant that he did not need to make a statement and that if he did so such statement could be used against him in the trial of the case. McCord testified that the statement was made to him and that he interrogated appellant but that Mr. Pape was present and typed it.
In his charge the court instructed the jury not to consider the confession if they believed or had a reasonable doubt that it was not made to McCord as stated therein.
Under the facts, the charge of the court fully protected appellant’s rights.
*82■ The facts 'have not been stated. Thé deceased, Jose Sauceda, was one of three men engaged in running a dance. Appellant danced one set without paying, and an argument ensued between him and one of the other men engaged with the deceased in selling and taking tickets.
The deceased entered the discussion or argument and was eventually cut or stabbed by appellant near the heart, which wound caused his death. Another of the three in charge of the dance was cut by appellant.
The testimony of the appellant raised the issue of self-defense, and was contrary to part of his confession which he denied having made. There was also testimony of communicated threats by the deceased and to the effect that the deceased’s reputation •was that of a dangerous or violent man.
The jury was charged upon the defenses and saw fit to reject them and the evidence sustains their verdict.
The State’s motion for rehearing is granted, the order of reversal is set aside, and the judgment is now affirmed.