
    LEE v. STATE.
    (No. 8007.)
    (Court of Criminal Appeals of Texas.
    March 5, 1924.)
    i. Jury <&wkey;70(8) — Failure to exhaust regular jury list before resorting to special venire list in murder prosecution held reversible error.
    Where in drawing the venire for a murder prosecution, the names in both of the lists for regular jury service and for special venire service were placed together in a box, and therefrom were drawn the number demanded in the special venire, and, of the 40 names placed upon the special venire in defendant’s case, but thirteen were from the regular jury list, and the remainder from the special venire list, and at the time defendant’s venire was drawn none of the names on the regular list had been drawn on any special venire; such procedure being contrary to Code Cr. Proc4. arts. 660a and 661, Vernon’s Complete Tex. St. 1920, or Vernon’s Ann. Code Cr. Proc. Supp. 1922, requiring that the regular jury list be exhausted before the special venire list is resorted to, was reversible error.
    2.Jury e&wkey;82(3)-Inconsequential departure from statutory method of selecting jury in capital cases not necessarily cause for reversal.
    An inconsequential departure from statutes designating the persons from whom the special venire in capital cases shall be drawn, when an absence of injury is shown, will not necessarily work a reversal.
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    John Lee, alias Thomas Lee, was -convicted of murder. He appeals.
    Reversed and remanded.
    Ira Lawley, of Groesbeck, for appellant. Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for life.

Á motion to quash the venire was overruled. Complaint is made of this in a bill of exceptions which reveals that’ for regular jury service there were selected and summoned 144 veniremen, and that for special venire service 150 persons were summoned. Before drawing the venire in th'e present case, the names in both of these lists were placed together in a box and therefrom were drawn the names of 40, that being the number demanded in the special venire. Of the 40 names placed upon the special venire in the appellant’s case, 13 were from the regular jury list, and the remainder were from the special venire list of 150. At the time that the appellant’s venire was drawn from the 294 names including both lists, none of the names on the regular jury list had been drawn on any special venire. Under the statute as construed by this court on former occasions, it is imperative that before resorting to the special venire list of 150 names, the regular jury list be exhausted in the manner indicated in articles 660a and 661 of the C. 0. P. See Acts Leg. 1919, c. 37, in Vernon’s Complete Statutes of Texas 1920; also Johnson v. State, 86 Tex. Cr. R. 566, 218 S. W. 496; Moore v. State, 49 Tex. Cr. R. 629, 95 S. W. 514; Bradley v. State (Tex. Cr. App.) 256 S. W. 292.

The facts of the present case are practically identical with those in the Bradley Case, supra. The trial of the appellant took place in the same court and at the same term as that in which Bradley was tried, and in drawing his special venire the same procedure took place as that described in the opinion of this court on motion for rehearing in Bradley’s Case, in which ' this. court found it necessary to order a reversal of the conviction for the reason that in selecting the special venire for the trial of the accused, there was a substantial departure from the method prescribed by the statute law of the state, in that the special venire was drawn from a list which included the names of 150 persons who, at that time, by reason of the express terms of the statute, were not available for service upon the special venire in the case.

The decisions of this court are harmonious to the effect that the provisions of the statutes designating- the persons from whom the special venire in capital cases shall be drawn shall be followed. An inconsequential departure, when an absence of injury is shown, will not necessarily work a reversal. Cotton v. State, 86 Texas Cr. R. 390, 217 S. W. 158. In the present case the failure to observe important provisions of the statute resulted in the drawing of the jury, which condemned the appellant to life imprisonment, from a list of men other than that designated by law. The state’s attorney concedes that the error cannot be held harmless.

The judgment is reversed, and the cause remanded. 
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