
    LYONS v. STATE.
    (No. 4266.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    1. Criminal Law <@=>1144(8) — Appeal — Swearing Jury — Statute.
    Under Code Cr. Proc. 1895, art. 904, as amended by Acts 25th Leg. e. 12, providing that on appeal the court must conclusively presume that the jury was sworn, unless such fact was made an issue below, where no such issue was raised during the trial, and the judgment recited that the court heard evidence on such issue on the motion for new trial, and determined it against the defendant, and the evidence was not presented, the court could not say that it affirmatively appeared by the record that the jury was not sworn.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2758-2760, 2901, 3023. 3024; Dec. Dig. <@=>1144(8); Jury, Cent. Dig. §§ 306, 330, 347, 390.]
    2. Jury <@=>148(3) — Oath.
    Where a jury was sworn to try a case, and the case was dismissed, and defendant in the next case consented to go to trial before the same jury, the jury was duly sworn for the second case. ,
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 643; Dec. Dig. <@=>148(3).]
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    Jim Lyons was convicted of perjury, and he appeals.
    Affirmed.
    J. M. Blankenship, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of perjury, and his punishment assessed at two years’ confinement in the state penitentiary.

No statement of facts accompanies the record, but in the motion for a new trial appellant contends that the jury was not sworn to try this case. In the affidavits he states the facts to be: That one case was called against appellant, and a jury was duly impaneled and sworn; that the district attorney then dismissed that case, and the trial of this case was proceeded with before the same jury, without the jury being again sworn. The judgment recites that the jury was duly impaneled and sworn, and the first time this question is attempted to be raised is after verdict in the motion for new trial. Article 904, Code Cr. Proc., as amended by Acts 25th Leg. c. 12, provides that on appeal we must conclusively presume" that the jury was sworn, unless such fact was made an issue in the court below. Certainly no such issue was raised during the trial; and if it can be said to be raised by these affidavits, the judgment of the court recites that he heard evidence on that issue and determined it against appellant’s contention. Appellant does not present that evidence to us, and we certainly cannot under such circumstances adjudge “that it affirmatively appears by the record” that the jury was not sworn.

We are further of the opinion that when the jury was sworn in the first instance, that case dismissed, and when appellant consented to go to trial in this case before the same jury which had been duly sworn, it was a substantial compliance with the statute.

The judgment is affirmed. 
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