¶1On Appellant’s Motion for Rehearing
¶2(dissenting).
¶3Rule 223, Rules of Civil Procedure, formerly Art. 2138, R.C.S.1925, provides:
“In counties governed as to juries by the laws providing for interchangeable juries, the names of the jurors shall be placed upon the general panel in the order in which they are drawn from the wheel, and jurors shall be assigned for service from the top thereof, in the order in which they shall be needed, and jurors returned to the general panel after service in any of such courts shall be enrolled at the bottom of the list in the order of their respective return; provided, however, that the trial judge upon the demand of any party to any case reached for trial by jury, or of the *336attorney for any such party, shall cause the names of all the members of the general panel available for service as jurors in such case to be placed in a receptacle and well shaken, and said trial judge shall draw therefrom the names of a sufficient number of jurors from which a jury may he selected to try such cause, and such names shall he transcribed in the order drawn on the jury list from which the jury is to be selected to try such case.”
¶4The jury panel from which the jury was selected to try the appellant was drawn from the members of the general panel upon demand of the state.
¶5Appellant’s trial counsel, according to the bill of exception, objected and moved to quash the new panel as illegally constituted because a jury panel had been drawn from said general panel upon demand of the defendant.
¶6Art. 608, C.C.P. provides that a challenge to the array must be in writing setting forth distinctly the grounds of such challenge. No written challenge or motion is found in the transcript.
¶7Art. 608, C.C.P. further provides: "when made by the defendant, it must be supported by his affidavit or the affidavit of any credible person. When such challenge is made, the judge shall hear evidence and decide without delay whether or not the challenge shall be sustained.”
¶8No affidavit appears to have been made or evidence offered in support of the challenge to the array of jurors.
¶9Appellant’s able counsel on appeal rely upon a bill of exception as a substitute for the required challenge to the array. This they cannot do. Arts. 608 and 641 C.C.P.; Evans v. State, 110 Tex.Cr.R. 560, 9 S.W.2d 360; Carroll v. State, 104 Tex.Cr.R. 11, 282 S.W. 233; Barrera v. State, 165 Tex.Cr.R. 552, 309 S.W.2d 437; Walker v. State, 171 Tex.Cr.R. 379, 350 S.W.2d 561.
¶10In Evans v. State, 110 Tex.Cr.R. 560, 9 S.W.2d 360, the defendant’s bill of exception No. 13 complained that after the list of jurors for the week had been exhausted the sheriff summoned additional jurors, as instructed by the trial judge, from the north end of the county.
¶11In the original opinion Judge Christian noted that the court had no authority to instruct the sheriff to select jurors from any particular section of the county but the bill was held insufficient to manifest prejudicial error.
¶12The original record reveals that Evans’ motion for rehearing took the position that appellant here takes; quoted the same section of Branch’s Ann.Statutes (Sec. 523, page 270) (2d Ed. Vol. 1, Sec. 543) and insisted, as appellant insists, that the infringement of the jury law required reversal without reference to whether injury to the defendant was shown. The motion for rehearing directed attention to the defendant’s challenge to the array of jurors which appeared in the transcript upon the same ground.
¶13The opinion on rehearing, by Judge Latti-more, pointed out that the challenge to the array was not supported by affidavit of anyone, as required by Arts. 608 and 641, C.C.P., and this being true the court saw no error, aside from which the court said the matter was discussed and correctly decided on its merits in the original opinion.
¶14The second motion for rehearing, again asserting that a reversal was required without reference to whether injury to the defendant was shown and citing numerous authorities, was overruled.
¶15The reversal of this conviction upon the bill of exception without the appellant having complied with Arts. 608 and 641, C.C.P. and without any showing of injury or prejudice is contrary to the prior holdings of this Court and in direct conflict with Evans v. State, supra.
¶16I respectfully dissent.