
    [No. 3650.]
    Eugene Stewart v. The State.
    Jury Law.— The transcript in a criminal case failing to show that the jury-trying the case were duly sworn, a conviction cannot stand.
    Appeal from the District Court of Jefferson.. Tried below before the Hon. W. H. Ford.
    The indictment in this case was joint against the appellant and John Thomas, and charged them with an assault with intent to murder one George Fagan in Jefferson county, Texas, on the 25th day of December, 1884. The appellant being alone upon trial was convicted, and awarded a term of two years in the penitentiary.
    No question of fact is involved in the disposition of this appeal.
    
      H. W. Greer, for the appellant.
    
      J. H. Burts, Assistant Attorney-General, for the State.
   Willson, Judge.

In this case the record fails to show that the jury were sworn, and therefore the conviction must be set aside. (Nels v. The State, 2 Texas, 280; Baird v. The State, 38 Texas, 599; Cannon v. The State, 5 Texas Ct. App., 34; Kennon v. The State, 7 Texas Ct. App., 326; Howard v. The State, 8 Texas Ct. App., 612; Perry v. The State, 10 Texas Ct. App., 315; Kelly v. The State, 13 Texas Ct. App., 158; Dresch v. The State, 14 Texas Ct. App., 175; McHenry v. The State, Id., 209.)

It was recommended to the Nineteenth Legislature to enact a law which would authorize this court, on appeal, to presume, in the absence of anything in the record to the contrary, that the jury that tried the case were sworn, and to presume that all the proceedings of the trial court were in accordance with the law, unless it was made to affirmatively appear in the record, by proper bill-of exceptions or otherwise, that there was error in such proceedings, etc. But the Legislature did not see proper to adopt this recommendation, and it is only left for us to adjudge the law as we find it. (See Attorney-General’s Report, 1884, p. 20, arts. 870, 870b.)

The judgment is reversed and the cause remanded.

Beoersed and remanded.

[Opinion delivered June 26, 1885.]  