Crisp v. State, (No. 5736.)

• Decision Date: 24 March 1920
• Docket Number: (No. 5736.)
• Parties: CRISP v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1104

220 S.W. 1104

CRISP v. STATE.

(No. 5736.)

Court of Criminal Appeals of Texas.

March 24, 1920.

Appeal from District Court, Cooke County; C. R. Pearman, Judge.

G. W. Crisp was convicted of felony theft, and he appeals. Reversed.

Culp, Culp & Culp, of Gainesville, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted of felony theft in the district court of Cooke county, and given a punishment of two years in the penitentiary, from which he appeals.

On the trial, the following form of oath was administered to the jury:

"You and each of you solemnly swear that in the case of the State of Texas against G. W. Crisp, the defendant, you will a true verdict render according to the law and the evidence."

Appellant has a bill of exceptions, complaining that this is not such an oath as is required to be administered to a jury. This bill is qualified by the court by the statement that, notwithstanding appellant and his counsel were present when the jury were so sworn, no objection was made thereto until in motion for new trial. Our Assistant Attorney General insists that the objection, if any, was thus waived, and this is the first question which presents itself.

Article 714, Vernon's C. C. P., is as follows:

"When the jury has been selected, the following oath shall be administered to them by the court, or under its direction: `You, and each of you, solemnly swear that in the case of the state of Texas against A. B., the defendant, you will a true verdict render according to the law and the evidence, so help you God.'"

The right of trial by jury must be held inviolate by constitutional mandate, and it is provided by article 22 of our Code of Criminal Procedure that in a criminal prosecution anything may be waived by the accused, except the right of trial by jury in a felony case. It has been held by all the courts, as far as we are aware, that 6 or 12 men sitting in judgment, unsworn, do not constitute a jury. Howard v. State, 80 Tex. Cr. R. 588, 192 S. W. 770, L. R. A. 1917D, 400, for discussion of authorities. So it must be held mandatory that the jury he sworn in a particular case. The question then arises as to whether a jury, to which has been administered any other form of oath than the one prescribed by statute, is to be regarded as having been sworn.

We do not think the question an open one in this state. In the early case of Arthur v. State, 3 Tex. 403, the Supreme Court, passing upon the question as to whether a legal oath was administered, held as follows:

"The statute in force when this case was tried (Acts 1846, p. 175, § 16) provides that, `in capital cases, the oath shall be, "You swear that you will well and truly try and true deliverance make between the state and the prisoner at the bar, whom you shall have in charge, according to law and evidence — so help you God."' This was not the oath administered to the jury in the case before us; but the jury were sworn `a true verdict to render, according to the law and testimony.' Had the record stated merely that the jury were duly sworn, we must have presumed that the proper oath was administered to them; but, when it appears affirmatively that they were not sworn as the law requires, there is no room for any intendment in favor of the regularity and legality of the proceedings, and the objection must be held fatal. When the Legislature have undertaken to prescribe the oath which shall be taken, it must be observed. And when the record shows that the statutory requirement has been disregarded, and the court has proceeded to substitute something else in its stead, it will be as if no oath had been administered. Any other oath than that prescribed is, in contemplation of law, no oath. And it is clear that the finding of a jury, not under oath, cannot constitute a legal verdict upon which the court can proceed to give judgment."

This case was followed by Martin v. State, 40 Tex. 19; that part of the opinion referring to this matter being as follows:

"Another question arises on the record, and is called to our notice by counsel. It is affirmatively recited in the entry of judgment that the jury were `sworn to try the issue between the state and the accused upon his plea of not guilty.' This is not the oath required by article 563, Code of Procedure (Pasch. Dig. 2029). It omits essential elements of that oath. It has been decided that, where the record sets out the oath administered, it must be taken as true. No presumption can be indulged against the affirmative statement of what oath was administered, as appears here, and that when an improper oath thus appears to have been administered it is an error fatal to the proceedings. Arthur v. State, 3 Tex. 403. This decision was made upon the statute then in force regulating criminal trials. The same reason applies under the Code, and no liberality of construction can change the plain import of the language used in the record, showing that the proper oath was not administered. For this error the judgment must be reversed and the cause remanded for a new trial."

Again, in Bawcom v. State, 41 Tex. 189, the Supreme Court held as follows:

"The record shows that a different oath was administered to the jury from that prescribed by law. This, as has been decided heretofore, is error, for which the judgment must be reversed. Arthur v. State, 3 Tex. 405; Martin v. State, decided during present term. Where it does not affirmatively appear from the record that a different oath from that prescribed has been administered, it will be presumed, in favor of the regularity of the proceeding in the district court, that the jury were properly sworn. But the oath administered in this case is set forth in the record, and no presumption can be indulged to impeach its verity."

To the same effect are the cases of Edmondson v. State, 41 Tex. 501, and Burch v. State, 43 Tex. 377.

Coming to the decisions of our own court, we find that in the case of Leer v. State, 2 Tex. App. 495, the case is reversed and remanded for the single reason that it appears from the record that another and different oath was...