A motion was made by defendant to set aside the indictment because a person not authorized by law was present when the grand jury were deliberating and voting upon the accusation against the defendant. This motion presented one of the two statutory grounds for which alone under our practice an indictment can be set aside. (Code Crim. Proc., art. 523; Willson’s Crim. Stats., sec. 2119.) The facts, as shown by defendant’s bill of exceptions, upon which this motion was predicated, are substantially as follows:
The grand jury for the term was duly organized on the third day of December. On the thirteenth of December, they having informed the court that they had completed their labors, the court discharged them for the remainder of said term. Shortly afterward the court took a recess for perhaps a month. Upon reconvening at the expiration of its recess, the court was advised that during its recess or adjournment several parties had been arrested for felonies, who had not been indicted and who were unable to give bond. Upon this information the court ordered the sheriff to summon the sixteen persons selected originally by the jury commissioners at the previous June term for the said December term—the four who had not been impaneled on the third of December as well as the twelve who had been, and who had acted up to the time they were discharged on the thirteenth, as aforesaid. In obedience to the summons thirteen of the original sixteen appeared and answered to their names; that is, the entire twelve who composed *377the original panel when discharged, and one Wofford, who had been one of the sixteen selected by the jury commissioners at the June term. All arrested parties, including defendant, were brought into court and afforded an opportunity for interposing challenges to the jury, as proposed to be organized, but no challenges were interposed. Lorance, one of the grand jury as originally impaneled and previously discharged, asked to be excuséd from the panel on account of sickness of his family, and the court excused him, and the man Wofford was retained—substituted in his place—to make out the panel of twelve men, and was, with the other eleven of the old grand jury, sworn and impaneled, and, as one of the grand jury, voted upon, found and presented the bill of indictment in this, case.
It is insisted in substance that the court, under the circumstances, had no authority to excuse Lorance, he being one of the jury as originally impaneled for the term; that, the action of the court being without authority and void, Lorance was, notwithstanding said action, still a legal member of the jury; and that the swearing and impaneling of Wofford in his stead was in legal effect the placing and impaneling of thirteen instead of twelve men, the maximum constitutional and statutory number allowed for a grand jury; that, such being the case, Wofford was a person not authorized by law to be present when the indictment was found; and that, if the court’s action gave him any authority, or constituted him one of the grand jury, then that body, being composed of thirteen men, was an illegal body and any indictment found by it was absolutely void.
If the grand jury was in fact composed of thirteen men under the facts stated, then there can be no question that the indictment would be void. (Lott v. The State, 18 Texas Ct. App., 627; McNeese v. The State, 19 Texas Ct. App., 48.) ÜSTor can there be any question that, after a grand jury is once impaneled, it is beyond the authority and province of the court to excuse or discharge one of its members so as to relieve him from his obligations and duties as such, and that any attempted discharge by the court, until the discharge is final for the term, would be a nullity and void, leaving the juror, in legal effect, still one of the grand jury. (Smith v. The State, 19 Texas Ct. App., 95.) The power to discharge during the term, or before a final discharge of the body after completion of their labors, *378is not vested either in the court or the grand jury, and in fact no such power exists anywhere by authority of law. (Watts v. The State, 22 Texas Ct. App., 572; Drake v. The State, 25 Texas Ct. App., 293; Jackson v. The State, Id., 314; Woods v. The State, 26 Texas Ct. App., 490.)
But all these rules apply alone to a grand jury whose personnel is fixed by its being organized and impaneled, and during the existence and continuance of such organization. After a grand jury has completed its labors and as a body has been discharged for the term by the court, as a body it ceases to exist, and its autonomy and personnel are in a measure, if not completely, changed and destroyed when it is sought to reassemble them. Our statute upon the subject is that, “when a grand jury has been discharged by the court for the term it maybe reassembled by the court at any time during the term, and in case of failure of one or more of the members to reassemble, the court may complete the panel by impaneling other qualified persons in their stead, in accordance with the rules prescribed in this chapter for completing the grand jury in the first instance.” (Code Crim. Proc., art. 391.)
We think it clear from the phraseology of this statute that it was within the contemplation and intention of the legislature that when the grand jury were reassembled they could only be reorganized and impaneled with twelve men; that there must be at least that many present; that no less number would suffice, and that, if there were not twelve present, the number should be completed by impaneling other qualified persons to make up the deficiency to twelve. If this were not the intention, and they intended the original personnel to control, it is evident that they would have provided that any nine of the original body who appeared could be entrusted with the duty of transacting the business for which they were reassembled, as is provided in article 390, Code of Criminal Procedure. We think it equally clear that when less than twelve appear it is made the duty of the court to fill up the deficiency, if practicable, out of the sixteen originally selected by the jury commissioners. (Art. 357, Code Crim. Proc.)
We think it equally apparent that, when the jury are reassembled after having once been discharged, they must be again “impaneled”; that is, tested as to qualification and sworn again. (Code Crim. Proc., art 379.) If so, then the jury is in effect a new one entirely.
*379If upon the reassembling twelve are requisite, and twelve appear, can the judge excuse, for good cause, one of the number and take another of the original sixteen in his place? There is no question but that, if the juror had stayed away, the court would have had the power. Does the fact that he came to court to render his excuse deprive the court of the authority to excuse him and place a new man in his stead? He had not been sworn anew and impaneled it must be remembered, and we will concede that the court might and could have impaneled him with the other eleven and left him to settle his excuses with the foreman and his fellows of the grand jury, who could and would doubtless have relieved him. Suppose the juror had appeared and had been insane, will any one for a moment doubt but that the court not only had the right., but that it would have been its duty, to excuse and stand him aside and put another in his place? Before the grand jury had originally been organized and impaneled would any one doubt that the court could have excused the juror on account of serious sickness of his family? We think not.
If the intention of the statute is that twelve men must be reorganized at the reassembly, what would be the use or the common sense in taking as one of the members a person who could not act and who would not act because of a good and sufficient reason why he should be excused from acting? Would the court do right- and be carrying out the intention of the Legislature to impanel such a party? We think not. The law never requires a useless or unnecessary thing to be done. If the excuse of the juror was a sufficient one, it would have been useless for the court to have impaneled him, knowing that he would be excused and would not act nor be called upon to act by the grand jury in the matter before them. To the extent which the court had the power to hear and grant excuses in the first instance, it was authorized to act in the second; and we think the power was exercised in this second legitimately, and in conformity with the spirit and intention of article 391, Code of Criminal Procedure.
The court did not err in refusing to set aside the indictment for the grounds specified. Otherwise the indictment is not objected to, and is amply sufficient to charge assault with intent to murder.
But it is most urgently insisted that the evidence is wholly insufficient to support the verdict and judgment finding appel*380lant guilty of assault with intent to murder. It is contended that the specific offense of intent to murder is not only not shown, but is disproved by the facts, because, as claimed, appellant was armed with a deadly weapon with which he stabbed the injured party, it is true, but without killing him; that he ■could have killed him, but he did not do so; on the contrary, that he discontinued and ceased his assault of his own motion after having inflicted the single blow with his deadly weapon.
Opinion delivered March 16, 1889.In assaults with intent to murder, the specific intent to kill is the essential element, and it must be proven to the satisfaction of the jury. “Two things must concur, an assault and a specific intent to kill. Without the simultaneous concurrence of these two constituent elements there can be no assault with intent to murder.” (Willson’s Crim. Stats., secs. 857-859; McCollough v. The State, 24 Texas Ct. App., 128; Moore et al. v. The State, 26 Texas Ct. App., 322.)
“The intent to kill must undoubtedly be established as an inference of fact, to the satisfaction of the jury; but they may draw that inference, as they draw all other inferences, from any fact in evidence which to their minds fairly proves its existence. Intentions can only be proved by acts, as juries can not look into the breast of, the criminal.” (People v. Scott, 6 Mich., 287-296; 1 Bish. Crim. Law, 7 ed., sec. 735.)
If the assault is voluntary, committed with deliberate design, •and with an instrument capable of producing death, and there are no extenuating circumstances, it is an assault with intent to murder. (Yanez v. The State, 20 Texas, 656.) And “whenever it appears upon a trial for assault with intent to murder that the offense would have been murder had death resulted therefrom, the person committing such assault is deemed to Lave done the same with that intent.” (Penal Code, art. 502.) We are of opinion the evidence in this case is amply sufficient to support the verdict and judgment. Having found no reversible error in the record, the judgment is affirmed.
Affirmed.