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: 391
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1875.] ANDERSON V. THE STATE. 391
Opinion of the Court.
court did act upon and overrule the application for a continuance,
and that the defendant excepted to such ruling of the,
court at the time.
Another objection taken to the conviction in this case is,
that it appears from the judgment-entry in this case that the
jury was improperly sworn, which is, that the jury was " sworn
"well and truly to try the case." The question arising upon
this was, whether this means that the jury were sworn for the
purpose of trying the case, the words "well and truly to try
" the case" being surplusage, or does it mean that the oath that
was administered to the jury was administered in that form ?
If the former, it would be sufficient; if the latter, it would certainly
be bad, under very many decisions formerly as well as
lately made by this court on this subject. We think that the
words do not convey the meaning that the oath was administered
to the jury in that or any other form, but to convey
the idea simply, that the jury was sworn in the case, which is
about equal to saying simply that the jury was sworn. We
are therefore of opinion, that we cannot say, from the words
here used, but that the jury were properly sworn. We have
very often decided, that where the judgment-entry recites that
the jury " were sworn to try the issue joined on a plea of not
"guilty," and the like, that this indicated the form of the
oath, and the case would have to be reversed on that account,
under the' precedents long established and followed by this
court. In this case, however, the words of the judgmententry
admit of a construction fairly, that the jury were sworn
in the case-the words "to try the case," meaning really
nothing further than to indicate the case in which the jury
were sworn, and not the form of the oath; and therefore it
does not fall under the rule which has dismissed so many cases
from this court, for an error that has resulted rather from the
negligence of the clerk in drawing up the judgment-entry,
which has escaped the attention of the attorneys and of the
presiding judge, than from an erroneous design.
We are of opinion that there is no error in this case so pre
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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/m1/399/: accessed June 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .