The State contends in its motion that no error was committed by the trial court in refusing to let appellant make a statement of the nature of his defenses and the facts he expected to offer in their support. Under the facts of this case as they appear upon re-examination of the proffered statement, and the *Page 315 time of its offer, we are of opinion that the State is correct. While it does appear in the opinion in House v. State, 171 S.W. Rep. 206, that before the tender of the opening statement by appellant two character witnesses had testified for the defense, still the opinion does not set out what reasons may have actuated the trial court in refusing to allow the accused to make the statement when offered. It was shown in the bill of exceptions in that case that the court below said he would overrule the plain letter of the statute, and that fact seems to have been largely in the mind of this court in holding that the court below had no right to overrule the plain letter of the law, and in holding that the court should have permitted the defense to make its statement when offered. Reverting to Art. 642 Cow. C. P., we note that the object of said article as a whole, is to prescribe the order of the trial of a criminal case, i. e., how and in what sequence the proceedings shall be had. Manifestly this court should not hold that the 3rd and 5th subdivisions of said article are mandatory, and in so far as any expression to the contrary appears in Walsh v. State,85 Tex. Crim. 212, we are not in accord therewith. In Holsey v. State, 24 Texas Crim. App. 35, we pointedly held subdivision 3 of said article to be directory. This is approved in Poole v. State, 45 Tex.Crim. Rep.; Owen v. State, 52 Tex. Crim. 65; Essary v. State, 53 Tex.Crim. Rep.; Dugan v. State, 82 Tex.Crim. Rep.; Wray v. State, 89 Tex. Crim. 637.
The State cites White v. State, 181 S.W. Rep. 192, as holding contrary to the view expressed in House v. State, supra, and contends that the White case announces a correct doctrine. Examining the opinion in said case we note that the bill of exceptions embracing the matter under discussion, did not set out what the appellant would have stated to the jury if permitted, nor did he state the facts which he intended and desired to put before them; and it was held that therefore the bill showed no injury. It is further stated in said opinion that notwithstanding the directory character of said statute, if the bill had shown any injury to the accused, the case would have been reversed, because under said statute the accused had a right to make such statement. The White case on this point is made to turn on the proposition that no injury to the accused was shown and this, while correct under the facts, is not applicable in all cases. The question of injury not being shown was also considered in Brown v. State, 87 Tex.Crim. Rep., and Wray v. State, supra.
We have this to say regarding this matter. We do not think subdivision 3 or 5 of Art. 642 mandatory, or that the court has the *Page 316 right to compel either side to make the statement therein referred to. We are of opinion that the statute in question has for its object the laying down of the order of procedure, and we regard the discussion of the principle involved, in Roberts v. State, 30 Texas Crim. App. 298, as apt. We are of opinion that the statute having expressly granted to the accused at a certain time and place in said procedure the right to make the statement, that such right, if properly claimed, can not be arbitrarily denied him. But to avail himself of such right he must either assert it in its proper order as laid down in the statute, or else show good reason for not so doing. To be sure the character and extent of such statement, are subject to the control of the trial court as intimated in Dugan v. State, supra, and if not kept within the proper limits, such right may be denied as said in Sue v. State, 52 Texas Crim Rep. 122. We take it that the case of Owen v. State, 52 Tex.Crim. Rep., correctly upheld the action of the lower court in refusing a proffered statement by the accused, because not made at the time and place and in the order designated in the statute, and that the right to make such statement is to that extent dependent on same being made at the time and in the order laid down by the law. We are further of opinion, however, that occasion may arise when though the right is not promptly asserted, sufficient reason may be shown to the court for not having so done, in which case the making of said statement would be left to the discretion of the trial court subject to review by this court if such discretion be deemed abused. Situations may well arise when the accused may overlook the assertion of this right at its proper time, and may present sufficient reason to the court below to justify the granting of such right out of its order, that is, after the introduction of evidence of the defendant begins. We wish to be understood as holding that when the request for leave to make such statement is made in its due order, and is refused, the denial being of a statutory grant, the presumption of injury will obtain. We have gone into this at some length in an effort to clarify our position upon this matter in view of the fact that the opinions seem somewhat confusing, both as to the rights of the State and the defendant in this matter. Where there are statutory directions, same should be obeyed both by the State and the accused, and the accused should make his offered statement at the time and place set out in the statute, and the court should give the right to make it at such time. In the instant case no excuse was made or offered by the accused for not offering to make his statement to the jury in its proper order, *Page 317 and one of the grounds stated by the court below upon which he based his refusal to allow the statement to be made when offered was the fact that it was not presented in its proper order. Examination of the proffered statement leads us to conclude it not such as is contemplated by the statute in question. We do not think the appellant should state in lengthy detail his own testimony or that of his witnesses, in such opening statement, but that the nature of his defense and the facts to support same should be set out in outline and in condensed form.
The State contends that we were incorrect in that part of our opinion wherein we held it improper for the court to overrule the challenges for cause to certain jurymen upon the ground that they entertained a prejudice against the accused. We have carefully reviewed the record as it relates to this matter and find ourselves not satisfied that there was no error in same. It does appear that in the voir dire examination of such jurors, the suggestion of prejudice arising from hearing of the homicide by the jurors, was made by the attorney for the accused in his questions; also that the answers do not make it clear whether the juror meant that he had a prejudice against the accused, or that he had formed from such hearsay an opinion about the case. There can be no question but that if said jurors really had prejudice, they were disqualified, — but it is questionable whether they intended to say, — what they really did say, — that is, that they had prejudice, or whether they intended to say that they merely had formed an opinion, which could be removed by testimony. Being in such condition of doubt from the record, we adhere to our ruling in this regard, but suggest that in such cases the trial court or the State's attorney, under permission of the court, should explain to the juror the difference between prejudice and opinion so that the real meaning and attitude of the juror can be arrived at both by the trial court and by this court from an examination of the record. Perhaps upon such explanation to them as indicated the jurors might have made clear their meaning, and some might have been as the State contends, or it might have been as appears on the face of the examinations.
Being unable to agree with the State in its contention, the motion for rehearing will be overruled.
Overruled. *Page 318