
    CROW v. STATE.
    (No. 6901.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1922.)
    1. Criminal law <&wkey; 172 — Conviction by irregular jury does not give rise to defense of former jeopardy, though acquittal would, whether regular or otherwise.
    The plea of former jeopardy, in the absence of a verdict of acquittal, is not available, where a jury of 12, such as described by Const, art. 5, § 13, has not been organized, though & verdict of acquittal by an irregular jury is available in bar of another prosecution for the same offense by Code Cr. Proc. 1911, art. 572.
    2. Criminal law <&wkey;l93--Improper dismissal of juror and reversal of conviction therefor does not make available the defense of former jeopardy.
    In a prosecution for murder, where, after six jurors have been chosen, one of them was dismissed, in the absence of defendant, because he was a negro, and the conviction which then resulted was set aside and a new trial ordered because of the court’s error in dismissing the juror, the defense of former jeopardy is nor available as a bar to the second trial.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Tom Crow was convicted of murder, and he appeals.
    Affirmed.
    Joe H.'H. Graham and Mauermann & Hair, all of San Antonio, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for murder ; punishment fixed at confinement in the penitentiary for a period of 25 years.

At the inception of the trial, appellant interposed the plea of former acquittal, based upon the following facts, namely: That on a previous trial of the ease, after the appellant had been' arraigned, the third juror selected was one Harper, a negro. There was no objection to his selection. Three additional jurors were subsequently selected, and all of the 6 were sworn to try the case. The trial judge, without the consent of'the appellant, discharged the juror Harper, after which 7 additional jurors were selected and sworn to try the case. The 12 jurors thus selected heard the indictment, plea of not guilty, the evidence, and the charge, and rendered the verdict of conviction, assessing the death penalty. An appeal from this judgment resulted in its reversal because of the error of the trial court in discharging the juror Harper and pro-' ceeding in the manner stated. See Crow v. State, 89 Tex. Cr. R. 151, 230 S. W. 148.

Appellant contends that after one juror was selected and sworn to try the case, jeopardy attached, and that the discharge of the juror Harper, being unauthorized, appellant wás then entitled to his deliverance. This view of appellant is in conflict with the opinion of this court stated in the ease of Steen v. State, 242 S. W. 1047. The facts there reviewed were not materially variant from those now under considera-' tion. Steen was charged with a capital offense, and after six jurors were selected, one of them was discharged by the court without the consent of Steen, the juror being disqualified. The panel was filled, and the trial resulted in a conviction carrying the death penalty. On appeal the court reversed the judgment on other grounds. See Steen v. State, 88 Tex. Cr. R. 256, 225 S. W. 529. At a subsequent trial, Steen interposed the plea of jeopardy based upon the facts mentioned, and this the court rejected. The trial resulted in a conviction, which was sustained by this court, in the case of Steen v. State, 242 S. W. 1047.

The principle controlling that decision and the authorities to which reference is made therein are conceived to be conclusive in the present case. The basic idea there expressed is that in Texas, since there is no jurisdiction to convict of a felony save through a jury (Huey v. State, 88 Tex. Cr. R. 377, 227 S. W. 186, 12 A. L. R. 1003), and since the Constitution (article 5, § 13) declares that a jury in a felony case must be composed of 12 men, there is no jeopardy until there shall be organized a jury composed of that number; that is to say, the plea of jeopardy, in the absence of a verdict of acquittal by the jury, is not available where the jury, such as is described by the Constitution, has not been organized. A verdict of acquittal by an irregular jury would, by virtue of the statute (article 572, Code of Grim. Proc.) be available in bar of another prosecution for the same offense. In Steen’s Case, supra, the dismissal of one of the jurors and the filling of his place with another rendered the jury of 12 men thus impaneled so irregular that it would require a reversal of the judgment, based upon the verdict, upon the appeal of the accused. See Dunn v. State (Tex. Cr. App.) 242 S. W. 1050. Steen had, however, the chance of acquittal by the jury thus impaneled; so in the instant case, the appellant, Crow, had the chance of acquittal by a jury that was irregular on his former trial. Having failed to secure an acquittal, the judgment of conviction against him was set aside on his appeal. He was thus relieved against the adverse vqrdict by an irregular jury. There was no jeopardy until the jury of 12 men was impaneled and charged with the deliverance. The verdict against him would not operate as an acquittal.

Finding no error in the action of the court in overruling the plea of former acquittal, the judgment is affirmed. 
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