Appellant was convicted of murder and given fifteen years in the penitentiary.
A venire of 360 jurors was drawn; 134 of these were not summoned. The return of the sheriff is that they could not be found after diligent search. The bill of exceptions is very lengthy, and the return of the sheriff was attacked. There was no amendment made or offered to the return. It is shown by the testimony of quite a number of the jurors who were not summoned, but who testified in regard to the diligence of the sheriff, that they were residents of the county; many of them of the City of Fort Worth; that their names are shown in the telephone book and directory, and could easily have been found, but if there was any inquiry made for them, or attempt to summon them, they were not aware of the fact. There was evidence that the attorneys for appellant secured a copy of the venire on Sunday morning and immediately instituted an investigation with reference to some of the jurors, and ascertained by the use of the telephone that they were residents of the city and easily accessible and were where they could easily be found. Here the matter rested. The venire was not quashed nor return amended. Appellant was forced to trial. Out of this venire there was a jury secured. We are of opinion under the cases of Brown v. State, 65 S.W. Rep., 912; Horn v. State, 50 Tex.Crim. Rep., and Logan v. State,54 Tex. Crim. 74, that the court was in error in not quashing the venire. The writer deems it unnecessary in view of the cited cases to discuss the matter. In the Logan case, supra, Judge Brooks, speaking for the court, said: "This motion should have been sustained. It does not show that degree of diligence to secure the attendance of the venire which the law requires," citing Horn v. State, supra.
It is not deemed necessary to set out the various grounds of the motion to quash. They all center in and around the main proposition that the diligence of the sheriff was not sufficient, and that by any ordinary diligence these jurors, or most of them, could have been had at the trial. Appellant had the right to have the jurors on *Page 3 the special venire summoned out of which to make his selection, and unless there is some tangible, real reason why these jurors were not summoned, the venire should be set aside and a new one ordered. The return of the sheriff is not sufficient, it merely states that the jurors could not be found after diligent inquiry or search.
The other bills of exception with reference to the formation of the jury and the overruling of appellant's challenges for cause are not discussed as these matters will not arise upon another trial.
The judgment is reversed and the cause remanded.
Reversed and remanded.