Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 300
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300 LOPEZ V. THE STATE. [Term ot
Opinion of the Court.
last nine years has so extensively prevailed throughout several
of the judicial districts, of laying down at length general
principles, or copying into the charge from the Code, all the
law relating to the offense (in all its degrees) for which the
accused may have been indicted, without any seeming reference
to the evidence in the case, is not calculated to assist the
jury in arriving at a correct conclusion. We are of the opinion
that such a practice in connection with a voluminous
charge, is well calculated to perplex, confuse, and mislead a
jury. The charge set forth in the indictment and the facts in
evidence determine, when attentively considered, what is the
law applicable to the case.
The sixth assignment of error, that "The court erred in re"
fusing to grant a new trial by reason of there being no cont'
stitutionally appointed clerk of this court," is answered by
the fact that the transcript of the record before us is dependent
on the certificate and signature of that officer, acting under the
appointment complained of. If he is not the clerk, and his certificate
confers no authenticity as to the papers before us being
the correct transcript of proceedings had in this case, then we
have no evidence before this court upon which action other than
a dismissal of this appeal could be had. We are not inclined,
however, in a proceeding of this sort, to decide on the constitutionality
of the law of May 7, 1873, and the right of an officer,
whose appointment is regular under that law, to hold the office
and perform the duties of district clerk under such appointment.
The judgment of conviction must, however, he set aside, and
the cause remanded for error not assigned, but apparent on the
record. Article 563 of the Code of Criminal Procedure prescribes
the oath to be administered to the jury in all criminal
cases; that oath, or its equivalent, was not administered to the
jury in this case. The words " Well, and truly to try the issue
" between the State and the defendant," is not thle equivalent
of the oath prescribed. Had the record stated merely that the
jury were duly sworn, or sworn according to law, the presump
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/308/: accessed May 27, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .