
    B. M. Stephens v. The State.
    
      No. 208.
    
    
      Decided February 24.
    
    Jury Law — Swearing Jury — Oath.—-The clear intention of the Code is, that a jury selected to try a felony less than cajiital must he sworn in the particular case, and the oath administered must he the one prescribed in article 657, Code of Criminal Procedure, and no other. Following Eippey v. The State, 29 Texas Crim. App., 43.
    Appeal from the District Court of Hardeman. Tried below before Hon. G-. A. Beown.
    This appeal is from a conviction for theft of a horse, the property of one Jesse Biggs, wherein the punishment assessed was five years in the penitentiary.
    In view of the disposition made of the case on appeal, no general statement is necessary.
    
      Standlee & Green, for appellant.
    — The court erred in overruling defendant’s motion for a new trial on the ground that the jury had not been sworn to try this cause; because the record shows, by the admission of the district attorney, “that the jury was not sworn in this case,” as shown by defendant’s bill of exceptions number 2.
    On appeal, if the record fails to show that the jury were sworn, or if it shows that any other oath than the statutory oath was administered to them, the conviction will be set aside. Any other oath than the statutory oath is, in contemplation of law, no oath. Leer v. The State, 2 Texas Crim. App., 495; Edmonson v. The State, 41 Texas, 501; Bawcomb v. The State, Id., 191; Martin v. The State, 40 Texas, 26; Smith v. The State, 1 Texas Crim. App., 408.
    
      Tbe judgment recites tbe fact that tbe jury was duly impanelled and sworn. Tbe defendant’s bill of exceptions number 2 shows that tbe statutory oath was not administered to tbe jury, and that tbe jury were not sworn after they were selected to try tbe defendant, but that they were sworn with other jurors for tbe week as provided for swearing jurors in civil cases (Rev. Stats., art. 3099), and that this oath was administered to tbe jury before this defendant was brought into tbe court room for trial. Defendant can not have tbe judgment corrected so that it will show tbe exact oath that was administered, but must present tbe point by bill of exceptions. Preston v. Tbe State, 8 Texas. Crim. App., 30.
    
      Ií. L. Henry, Assistant Attorney-General, for tbe State.
   SIMKINS, Judge.

There is but one question in this case that need be considered: Was tbe jury sworn as required by law? Tbe trial judge states, that on Monday, tbe 15th of May, 1893, before this case was called for trial, when tbe jury for tbe week was being impanelled, tbe court administered to all tbe jurors for that week, including all tbe jurors who tried tbe case, tbe oath prescribed by article 3099 of tbe Revised Statutes for jurors in civil cases, and no other oath was administered to them; in other words, tbe jurors who were selected and tried this case were not sworn as required by article 657 of tbe Code of Criminal Procedure. Tbe clear intention of tbe Code is that a jury selected to try a defendant on a criminal charge shall be sworn in tbe specific case, and under the oath prescribed, and no other. Willson’s Crim. Stats., sec. 2289. Then only can a jury be said to be “impan-elled in tbe case.” Rippey’s case, 29 Texas Crim. App., 43. In all cases less than capital, jurors are not impanelled until selected and sworn as a body. Rippey’s case, supra; Heskew’s case, 17 Texas Crim. App., 161; Ellison’s case, 12 Texas Crim. App., 557. This is fatal to tbe conviction.

Tbe judgment is reversed and tbe cause remanded.

Reversed and remanded.

Judges all present and concurring.  