The offense is murder; the punishment, ten years’ confinement in the penitentiary.
In this case, Bexar County being a jury wheel county, the list of jurors drawn from the jury wheel for jury service during the particular week the case was tried was exhausted without a jury having been obtained.
The jury was completed from talesmen summoned by the sheriff, at the order of the court (Art. 596, C.C.P.).
The appellant objected to such procedure and insisted that the jury should have been completed from the names of jurors drawn from the jury wheel.
The question presented for our determination, then, may be stated as follows:
In Bexar County, when the list of jurors selected for the week has been exhausted without a jury being selected in a capital felony, may the jury be completed from talesmen summoned by the sheriff, over the objection and without the consent of the accused?
The answer to that question lies, primarily, in the construction to be given to Art. 601a, V.A.C.C.P., which reads as follows :
“Special venire in counties having city of 231,500.
“In counties having therein a city of at least two hundred and thirty-one thousand, five hundred (231,500) population as shown by the last preceding Federal Census, the Judge of the Court having jurisdiction of a capital case in which a motion for a special venire has been made, shall grant, or refuse such motion for a special venire and upon such refusal require the case to be tried by the regular juror summoned for service, and *60such additional talesmen as may be ordered by the Court, in the Courts of such county where as many as one hundred (100) jurors have been summoned in such county for regular service for the week in which such capital case is set for trial, but the Clerk of such Court shall furnish the defendant or his counsel a list of the persons summoned for jury service for such work upon application therefor, and it is further provided that all laws and parts of laws in conflict with the provisions of this bill be and the same are hereby repealed to the extent of such conflict only.”
By that statute the legislature abolished the right of either party in a capital felony to demand a special venire in such county.
In lieu of a special venire, the jury was to be obtained from the “regular jurors summoned for service, and such additional talesmen as may be ordered by the Court.” The regular jurors, there mentioned, were those provided by and drawn from the jury wheel.
The trend of legislation in this state has been both constant in not giving approbation to and determined to do away with the selection of juries from jurors selected by the sheriff and commonly called “pickups.” Such is evidenced, primarily, by our jury wheel laws (Chap. 7 of Title 42, R.C.S.).
We note in Art. 2101, R.C.S., that the legislature, in counties to which the interchangeable jury law applies, expressly provides :
“In the event of a deficiency of said jurors at any time to meet the requirement of all said courts, the judge having control of said general panel for the week shall order such additional jurors to be drawn from the wheel as may be sufficient to meet such emergency ...”
Such language must, of necessity, be given the construction that the legislature was prohibiting jury selection from pickups under the interchangeable jury law.
In Art. 2118, R.C.S., the legislature again made it clear that in counties using the jury wheel system for obtaining juries when additional jurors are necessary in order to complete the panel they be drawn from the jury wheel and not selected by the sheriff.
*61In Steadman v. State, 151 Tex. Cr. R. 226, 206 S.W. 2d 597, we expressly upheld that statute and there held that “if the trial be had in a county operating under the jury wheel system, and additional prospective jurors are needed, they should be jurors whose names have been taken from the jury wheel as is provided by law for the operation of such jury wheel.”
It is true that the Steadman case involved a conviction in an ordinary felony, while the instant case is a capital felony.
We are unable to conclude that such difference renders the Steadman case uncontrolling here. To the contrary, it appears to be directly applicable, in view of the fact that in Bexar County the right to demand a special venire in capital cases has been abolished. This, of necessity, places capital cases upon the same footing as ordinary felony cases, so far as is concerned the source from which the prospective jurors are to be selected in that county.
We are constrained, therefore, to conclude that the appellant’s objection to completion of the jury from talesmen selected by the sheriff should have been sustained.
For the reason pointed out, the judgment is reversed and the cause is remanded.