When this case was called for trial the State announced ready. Appellant did not, but filed or made a motion demanding a special venire, the case being rape, which is a capital offense. This being the case and the law, he was entitled to a special venire from which to select a jury. One objection by the State to having a special venire seems to be found in the fact that appellant did not file an affidavit previous to the calling of the case asking for a special venire, and this error of the court was sought to be condoned by the judge and district attorney entering into an agreement that they would waive the death penalty in the case for appellant, thus rendering a special venire unnecessary. The defendant was not consulted in regard to the agreement, nor were his wishes taken into account in regard to it. By this action on the part of the court and the district attorney they recognized that appellant was clearly entitled to the special venire, and to avoid this they made this agreement to waive him out of his legal rights in this matter by not submitting the death penalty as part of the punishment. They did submit, however, life imprisonment. This was their view of the matter. These questions have been definitely determined against the trial court and the opinion in the instant case as rendered by the majority of this court. Burries v. State, 36 Tex.Crim. Rep.; Farrar v. State,44 Tex. Crim. 236. The fact that those cases are in the way of affirmance, and required reversal, ought not to justify this court to ignore them, or overrule without alluding to them.
The statute provides the accused may demand, as the State may, a special venire. The defendant if he believes or is willing to make the affidavit to the effect he will be ready to try his case, may under such circumstances make such oath to secure a special venire. The statute so provides, but it does not deprive him of a special venire if he does not make such oath. He may not be ready or he may believe that he will not be ready. To acquire him to make that oath when he believes his case can not be ready for trial, might subject him to a *Page 92 charge of swearing falsely. But that does not deprive him of the right of trial by jury as provided by statute, towit: special venire. He is entitled to have such venire summoned upon his call for it, and out of it make a selection of the jury to try him for his life. Burries v. State, 36 Tex.Crim. Rep.; Farrar v. State, 44 Tex.Crim. Rep.. The Farrar case is cited by my brethren as authority for the waiver on the part of appellant in this case of the special venire. How that can be I do not understand from reading the Farrar case. The defendant here did not waive his right to a special venire, but expressly demanded it. In the Farrar case the facts show that the defendant did not call for a special venire until after the overruling of his motion for a continuance. In that case the court held that was not tantamount to a waiver of his right to a special venire. That was the only question in the Farrar case decided by the court. In that case, as in this, the defendant in a capital case was forced to trial before the regular jury for the week. Appellant reserved a bill of exceptions to the refusal of the court in the Farrar case, as appellant did in this case, to accord him a special venire. The court qualifies the bill of exceptions in the Farrar case as follows: "The request for special venire was not made until after the motion of defendant for continuance had been overruled and the jury called into the box." Quoting from that opinion, it is said: "It will be seen from this that the court based his refusal to allow appellant a special venire on the fact that his request was not made until after the motion of defendant for continuance had been overruled and the jury called into the box. This was a capital case, as the indictment charged the robbery to have been committed with firearms (see Ex parte Epps, 35 Tex.Crim. Rep.), and, therefore, appellant was entitled to a special venire unless he waived it. This he did not do, unless it be conceded that his failure to call for special venire prior to the overruling of the motion for continuance was a waiver. In Houillion v. State, 3 Texas Crim. App., 537, it is said: `If appellant remains silent as to a service of the special venire, and when called upon pleads to the indictment, and suffers the trial to proceed without objection, taking the chance of being acquitted by the jury, he will be presumed to have waived his right to a service of a copy of the same as provided by law.' Articles 643 and 644 of the Code of Criminal Procedure regulate the procedure with reference to the obtention of a special venire, the first authorizing an application by the State, and the last article authorizing an application on the part of the defendant. In Hall's case, 28 Texas Crim. App., 146, it appears that an order for special venire was made by the court on appellant's verbal motion without affidavit. So it would seem that the form of the motion is not regarded as essential. However that may be, it occurs to us that the fair interpretation of articles 642-681, Code of Criminal Procedure, is intended to provide the character of venire from which a jury in a capital case is to be selected, and that the obligation is cast upon the State in the first instance to ask for this special venire. The machinery for the trial of a capital case is *Page 93 provided by law, and it is the duty of the court primarily to see that the proper tribunal is selected. We hold, if the State has not acted in the matter of securing a special venire, and if the court has not taken the steps to provide for this tribunal, it is appellant's right to object to being tried by any other than a special venire at any time prior to his agreeing to be tried by the regular jury. Of course, if he raises no objection, and no special venire has been summoned, and the regular jury for the week is called into the box, and he proceeds to the selection of jurors from this panel, he may be regarded as having waived his right to a special venire. But here, as we understand it, when he was first confronted with the jury, after his motion for continuance was overruled, — that is, when the jury for the week was called into the box, — he objected to being tried by that body, and insisted on a special venire. We hold that his objection was in time, and that there was no waiver of his right to a special venire. See this question discussed in Burries v. State, 36 Tex.Crim. Rep.. `The law guarantees to persons charged with capital offenses the character of tribunal authorized and appointed by law to try them,' and because he was refused such a tribunal by the action of the court the judgment is reversed and the cause remanded." That opinion was written by Judge Henderson. The statutes were then as they are now on this question, and with such construction were re-enacted by the Legislature. I have quoted from that opinion, which cites the Houillion case, because the majority opinion relied upon those two cases as their authority for the holding, that defendant in the instant case waived his right. I do not understand how such a conclusion could possibly have been reached from those cases. Judge Henderson also wrote the Burries case, 36 Tex. Crim. 13. The syllabus in that case says: "Robbery committed by the use or exhibition of a firearm or other deadly weapon, being a capital felony, a party prosecuted therefor is entitled to a special venire and to one day's service of a copy of such special venire prior to his trial, unless he has waived (if he can do so) his right to such special venire; and it is no answer or excuse that neither the State, or the defendant called for such special venire or failed to have one summoned for the trial or that to summon one and serve defendant with a copy thereof would operate a continuance of the case." Quoting from that opinion: "If it was competent for him to waive a trial by special venire, it does not appear that he did so in this case. On the contrary, he claimedhis right to a day's service of the list of special veniremensummoned for his trial. It did not excuse the State, becauseneither the State nor the appellant called for a special venire,or failed to have such special venire summoned for the trial,because the law makes that an essential part of the machinery bywhich one accused of a capital offense is to be tried. Nor was itany excuse that if the venire had been summoned, and the listserved one day in advance of the trial, it would have operated acontinuance of the cause. (Italics mine.) The law guarantees to persons to be tried for offenses the character of tribunal authorized and appointed by law to try them; *Page 94 and, because such a tribunal was not used, it is no answer to say that sufficient time was not left during the term to try the party after the manner and by the character of jury authorized by the law." I do not understand how language could be plainer or clearer. The majority opinion cites the Farrar case as sustaining their proposition, that defendant waived his right. I cite the Farrar case and Burries case specially to show the holding of my associates is in opposition and contrary to all previous authorities on that particular question, and particularly directly in the face of and contrary to the cases they cite. It may be that the defendant could, as Judge Henderson writes, waive the special venire by accepting the jury for the week and go through the trial without objection to that procedure, or calling for special venire, but the record in the instant case eliminates all such questions, for as soon as his case was called for trial he demanded the special venire. This he was refused by the district attorney and the court entering into a solemn agreement to waive him out of his right of trial by a special venire. They made good their agreement over opposition of appellant by reason of judicial power, and now it is solemnly asserted that appellant did the waiving. This is not right, and ought not to be. I do not understand that it can be correctly held that a district judge and district attorney, either singularly or jointly, can waive defendant's rights. Even in misdemeanors the defendant only can waive a jury; the State can not, nor can the court. His own counsel can not do that with reference to trial by jury, and the statute itself provides that even he can not do it. Collins v. State, 47 Tex.Crim. Rep.. The statute says he may waive any right accorded him except trial by jury. The Constitution says: "The right of trial by jury shall remain inviolate." Art. 1, sec. 15; C.C.P., art. 22. The Burries and Farrar cases ought not to be ignored or used in a way not to sustain a proposition they expressly decide the other way. The judgment ought to be reversed and the cause remanded. So believing I can not agree with my brethren in their affirmance. I see no use in having law unless it is obeyed, and especially when the accused is insisting upon his legal rights based on that law. Our laws are made to insure the defendant a fair trial, and not to be disregarded and overturned to prevent such trial.