Lacy v. State

ON MOTION FOR REHEARING

WOODLEY, Judge.

Art. 628 C.C.P. provides:

“The clerk shall draw from the box, in the presence of the court, the names of twenty-four jurors, if in the district court, or so many as there may be, if there is a less number in the box; and the names of twelve jurors, if in the county court, or so many as there may be, if there be a less number in-the box, and write the names as drawn upon two slips of «paper and deliver one slip to the State’s counsel and the other to the defendant or his attorney.”

Appellant objected because more than 12 names were drawn from the box and placed on the list presented to him. He cites as authority for his claim for reversal on this bill three early cases construing this provision.

Burfey v. State, 3 Texas App. 519, where the defendant requested that 27 names be placed on the list, and the Court *223of Appeals stated that they knew of no law which authorized the defendant to demand or the court on his own motion to require that more than 24 be drawn except in capital cases.

Jones v. State, 3 Texas App. 575, where the same point was raised and the Burfey holding was approved.

Jones v. State, 37 Texas Cr. Rep. 433, 35 S. W.975, where the court held the bill of exception insufficient to raise complaint because 26 jurors were drawn instead of 24 as the statute provides.

In Bratt v. State, 38 Texas Cr. Rep. 121, 41 S.W. 624, the list furnished the defendant had 30 names, but 3 were taken off, and he complained. In overruling the complaint, this court said:

“The law only allowed him 24, and he had 3 more than he was entitled to choose from, of which he certainly cannot complain.”

Appellant’s motion for rehearing is overruled.