A motion to quash the special venire made by the defendant was overruled by the court, to which ruling a bill of exception, was reserved. A ground of said motion is that after the writ had been, issued and placed in the hands of an officer to be executed said officer made alterations therein, to-wit, the name “J. W. Turner” in the list of persons to be summoned was changed to “G. S. Turner,” and said writ was served upon G. S. and not upon J. W. Turner. Also that the name “T. U. Pinkerton” in said list was changed to “T. U. Robinson.” It was certainly an irregularity for said officer to make said changes, and such conduct deserves condemnation. We think the trial court would have been warranted in quashing the venire upon this ground, and it was: error, perhaps, not to' do so, but not such error in our opinion as entitles, the defendant to a new trial, because it does not appear that he was or could have been injured in his rights by reason thereof. He did not exhaust his peremptory challenges in the formation of the jury. He was, tried by a jury of his choice, no objectionable juror having been forced upon him. Code Crim. Proc., art. 777; Bowen v. The State, 3 Texas Ct. App., 617; Allen v. The State, 4 Texas Ct. App., 581; Baker v. The State, 4 Texas Ct. App., 223; Harris v. The State, 6 Texas Ct. App., 97; Taylor v. The State, 14 Texas Ct. App.,. 340. The other grounds set forth in the motion to quash are, we think, not maintainable, and if they were,, would not be material.
It was permissible for the sheriff, under the direction of the court, to amend the return of the special venire. Powers v. The State, 23 Texas Ct. App., 42; Rodriguez v. The State, 23 Texas Ct. App., 503. No material error, at least, was committed in allowing the return to be amended in the manner shown in the bill of exception.
Bill of exception No. 3 shows no material error. While the proper-practice required that the talesmen should have been drawn from the jurors selected by the jury commissioners to do service during the term, still the defendant was not injured in his rights by a failure to so draw them, because no objectionable juror was forced upon him.
It is objected in this court that the record does not show an order for a special venire. This objection was not made in the trial court. It appears from the record that the trial judge’s docket shows an entry in the case as follows: “April 29, 1889. Set Tuesday, May 14. Special venireof 100 men returnable Saturday 11." No order for a special venire is-found in the minutes of the court.
In Steagald v. The State, 22 Texas Court of Appeals, 464, this court, said that a conviction in a capital case would not be affirmed where the-record failed to show an order of the trial court for the issuance of a-special venire; that it would not be presumed that such an order was: made and entered. Upon a more mature consideration of the question, we are of the opinion that the rule stated in that case is incorrect. W© *101think the correct rule on appeal is, that where the record is silent as to .such order; where no objection was taken in limine that such order was not made; where the record shows that a jury was impaneled under a special venire, it will be presumed that such order as the law prescribes was made and entered, or that it was waived by the defendant. In. this case we are fully warranted in indulging such presumption.
There was no error in rejecting the proposed testimony as to declarations made by the defendant after the homicide. They were not res gestee, and not in explanation of former declarations, but were self-serving in their nature.
We think the charge of the court is full, fair, and correct, and as favor.able to the defendant as was demanded by the evidence, and that the .special instructions requested were properly refused.
As to the sufficiency of the evidence, while it is circumstantial as to the defendant, it is in our judgment sufficient to establish his guilt as a principal in the murder.
We find no error in the conviction, and it is affirmed.
Affirmed.
Hurt, J., absent.