
    CARRASCO v. STATE.
    (No. 9153.)
    (Court of Criminal Appeals of Texas.
    April 22, 1925.
    Rebearing Denied June 26, 1925.)
    Jury <9=3137(3) — Peremptory challenge cannot be exercised in capital case after acceptance of juror by both parties.
    Permitting state, in capital case, to exercise challenge upon juror over defendant’s objection, after juror bad been accepted by both parties and sworn individually by tbe court, though jury was not yet* completed, held erroneous.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Jose Carrasco was convicted of murder, and be appeals.
    Reversed and remanded.
    E. B. Elfers, of El Paso, for appellant. Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for tbe State.
   MORROW, P. J.

Appellant is condemned to suffer death for tbe offense of murder.. A recital. of tbe evidence is deemed unnecessary. Suffice it to say that it is sufficient to support tbe verdict.

Erom bill of exceptions No. 4, wbicb is signed by tbe trial judge without qualification, tbe following facts are made to appear: On tbe first day of tbe trial, W. P. Clapp, a member of tbe special venire, was examined by tbe court and found to be a qualified juror. He was thereafter examined at length by both tbe state and tbe defendant and accepted by both parties. Tbe juror was then sworn individually by tbe court to sit as a juror to try tbe case. He was instructed by tbe court concerning bis conduct while on tbe jury, and delivered to tbe sheriff to remain in bis custody during tbe selection of tbe other members of tbe jury. Some 24 hours later, before tbe jury was completed, but after nine jurors, including Clapp, bad been selected and sworn and thus impaneled to try tbe case, tbe district attorney stated, to tbe court that he desired to'make further examination of tbe juror Clapp, stating at tbe time that he was informed that Clapp bad not truthfully answered some of tbe questions propounded on bis voir dire. This examination was permitted over tbe objection of tbe appellant, and many questions were propounded to the juror by tbe district attorney, to wbicb be made answers. Tbe bill does not reveal whether they were in conflict with any previous answers given by him, nor, so far as is perceived, did tbe examination develop any disqualifying fact against tbe juror. At tbe conclusion of tbe examination, tbe court, against tbe protest of tbe appellant, permitted tbe state to exercise a peremptory challenge of tbe juror and thereupon excuse him from tbe jury. Tbe court then proceeded with tbe selection of tbe other jurors until tbe jury of 12 bad been completed. When juror Clapp was sworn to try tbe case, be became impaneled as a member of tbe jury, and tbe court was without power, without tbe consent of tbe accused, to dis.miss him from the jury and select another in bis stead. This was decided by this court in Hill v. State, 10 Tex. App. 618; Wade v. State, 12 Tex. App. 369; Ellison v. State, 12 Tex. App. 580; Sterling v. State, 15 Tex. App. 249. In Sterling’s Case, supra, in wbicb tbe penalty assessed was confinement in tbe penitentiary for five years, tbe appeal was based upon tbe unauthorized discharge of one of tbe jurors after be bad been impaneled. After six jurors were impaneled, one of them learning that bis family was ill, tbe court, with tbe consent of counsel for tbe accused, and in tbe presence of tbe accused but without bis express consent, discharged tbe jurors, selected another in bis stead, and proceeded with tbe trial. Tbe case was decided in tbe year 1883. From tbe language of Judge Will-son in reversing tbe ease, we quote:

“It has been settled by the decisions of this court 'that when a juror has been sworn in a capital case he is impaneled, and must remain upon the jury to the termination of the trial. The court has no power to excuse a juror impaneled in a felony case. In case of sickness or accident rendering it impracticable to proceed with the trial of the case before the jury as then constituted, the only course the court can take is to' discharge the jury and to proceed to form another.”

In tbe recent case of Grow v. State, decided in 1921, and reported in 89 Tex. Cr. Rep. 149, 230 S. W. 148, practically tbe same question here presented was before tbe court. During tbe selection of tbe jury in tbe Grow Case, supra, Harper, a negro, was accepted by both tbe state and tbe accused. He was tbe third juror selected and impaneled. After bis selection, three other men were selected and sworn. Harper was excused from tbe jury with tbe consent of counsel for both tbe state and tbe appellant. With those remaining and others impaneled, a jury of 12 was completed, and a verdict of conviction rendered. This court held that tbe discharge of Harper without tbe express consent, of tbe accused was fatal to tbe conviction, citing many cases. In tbe opinion are cited cases announcing that if, after tbe impanelment of tbe jury, and in a capital case, after tbe selection and swearing of tbe members of tbe jury, sickness or,some compelling cause renders it impracticable to proceed with the trial before the jury as then constituted, the only course open to the court is to discharge the jury and to proceed to form another. This course was followed in the case of Steen v. State, 92 Tex. Cr. R. 99, 242 S. W. 1047, in which the conviction was upheld. In that case a disqualified juror was one of the six who had been impaneled. Upon discovering his disqualification, the appellant declined to make any agreement touching the procedure to be pursued. The court discharged the six men, and continued the case for the term. At the succeeding term the appellant was convicted. He then questioned the soundness of the ruling of the court in discharging the six jurors under the circumstances mentioned, by way of a plea of former jeopardy. This court upheld the conviction, stating, in substance, that the circumstances warranted the trial court in discharging the six jurors 'impaneled to the end that another jury might be selected to try the accused. Without elaboration, we refer ‡0 the precedents mentioned and to others foupd in the opinions cited, and feel constrained to hold that, in eliminating the juror Clapp from the jury after he had been,sworn to try the case, and in selecting another juror in his stead, all against the appellant’s protest, the learned trial judge fell into error which renders it necessary to order a reversal of the judgment. This is accordingly done.

On Motion for -Rehearing.

HAWKINS, I.

The state, through CL S. No-well, the able district attorney who prosecuted in this case, has filed a motion for rehearing in which it is urged (1) that we were in error in holding that the state could not exercise a peremptory challenge upon a juror after he had been selected by both parties and sworn in a capital case but before the jury was completed and the defendant had pleaded to the indictment; (2) that the opinions are erroneous which announce that the trial court cannot under such circumstances stand a juror aside upon a challenge based upon causes which show such juror’s disqualification which were not known to exist when the juror was accepted.

A decision of the last question is not called for in the present case. It is unnecessary to go into an investigation of the matter now, and would demand a review of many former opinions from our own courts, and an examination of the statutes of other states from which authorities are cited. However, it raises an interesting and important question which it may be necessary to consider at some future time.

In the present case the bill of exception shows that the state, over appellant’s objection, was permitted to peremptorily challenge a juror who had' already been accepted by both sides and sworn. We feel quite sure this procedure was improper and not sustained by decisions from our own state. Horbach v. State, 43 Tex. Rep. 242; Drake v. State, 5 Tex. App. 649.

The motion for rehearing is overruled. 
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