Appellant was indicted September 28, 1880, for the murder of Robert Dickerson. In October, 1881, he was tried upon that charge and convicted, and his punishment fixed at confinement in the penitentiary for twenty years; and from this conviction he has appealed to this court, and assigns and urges numerous errors in the proceedings of the court below, and in the conviction.

The first error assigned is the action of the court in overruling his motion for a change of venue. This motion was made and acted upon by the court in October, 1880, one year before the trial, and upon the overruling of this motion the defendant applied for and' obtained a continuance of the cause. We do not think the court below abused the discretion confided to it by the law in refusing to grant the change of venue, but, even if it had, it would only be such an error as would be limited to that term of the court. The causes which might exist at one term of the court, authorizing a change of venue, might not exist at a subsequent term. If the defendant was not satisfied to be tried in Caldwell county,— if he still apprehended that he could not have a fair and impartial trial in that county,—he should have renewed his application for a change of venue, and, not having done this, he cannot be heard to complain that at a previous term of the court he had been refused a change of -venue. The applicant’s first three assignments of error have reference to the action of the court upon his motion asking for a change of venue, and we are of the opinion that they are not well taken.

*578The fourth assignment of error is that the court erred in holding that one John M. Booten was a competent juror. This juror stated that he had heard the case talked about a good deal in the community, and had heard versions of the killing, and had formed an impression from what he had heard, but had reached no conclusion in his own mind as to the guilt or innocence of the defendant; that he had a mere impression from what he had heard, but that impression would have no effect upon his verdict. He had read no published statement of the evidence; had heard none of the evidence, and had not talked to any of the witnesses. If the evidence was as he had heard of it, then he would have had an opinion; but he did not know that what he had heard was true, nor had he ever come to any conclusion that it was true. We do not think the court erred in holding this juror to be qualified. It appears from his answers,- and there is nothing to contradict him, that there was not established in his mind, from hearsay or otherwise, any conclusion as to the guilt or innocence of the accused, such as would influence his verdict. Code Grim. Proc. art. 636.

The fifth, sixth, seventh, eighth and ninth assignments of error relate to the same subject, and present a question of much practical importance. After eleven jurors had been selected and sworn in the case, the court announced that one of the eleven was complaining of being unwell, and that, if the parties would consent to it, he would discharge the juror. The district attorney gave his consent to the discharge of the juror, but the defendant withheld his consent. The juror stated that he was suffering from prolapsus ani, to which he was subject, and which caused him much pain,—that he could serve on the jury through the trial of the case, he thought, provided the trial did not continue many days. The court thereupon, without the consent of the defendant, discharged the juror from serving in the case. The defendant excepted to this action of *579the court, and presents it in a bill of exceptions. The court then proceeded with the formation of the jury, and the defendant exhausted his peremptory challenges before the panel was completed, and when the eleventh juror was again obtained, he contended that twelve jurors had been selected and impaneled in the case (including the juror who had been discharged by the court), and that the panel was full and complete. The court overruled his objections, and he excepted and presents the matter in a bill of exceptions.

Article 642 of the Code of Criminal Procedure provides: “As each juror is selected for the trial of the case the following oath shall be administered to him by the court, or under its direction,—“Yo-u 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.” Thus, it will be seen, each juror is sworn separately, and not all together, as was at one time the usual practice. This rule, however, applies only to the formation of the jury in a capital case. In cases less than capital the oath is administered to the jurors in a body. (Code Crim. Proc. art. 657.) When a juror in a capital case has been sworn, he is impaneled, and must remain upon the jury to the termination of the trial. There is no provision of the statute which confers upon the trial court the power to excuse a juror from service in a felony case, after he has been accepted and sworn as such. The only statutory provision we find upon this subject is article 699 of the Code of Criminal Procedure, which reads as follows: “If, after the retirement of the jury in a felony case, any one of them become so sick as to prevent the continuance of his-duty, or any accident or circumstance occur to prevent their being kept together, the jury may be discharged.” Before a juror has been accepted and sworn in a casé, the court may hear an excuse from him for not serving, and may excuse him *580from serving; but this provision of the law does not apply after the juror has been impaneled. (Code Crim. Proc. art. 620.)

It is our conclusion, and we so hold, that, after a juror has been once impaneled in a felony case, it is beyond the power of the • court to excuse him from serving in the case, and that in case of sickness or accident rendering it impracticable to proceed with the trial of the case before the jury as then constituted, the court should discharge that jury, and proceed to form another for the trial of the case. This precise question was before this court in the case of Hill v. State, 10 Texas Ct. App. 618, and was ably discussed by Judge Hurt, and the conclusion arrived at that it was a fatal error for the court, of its own motion, to discharge a juror who had been impaneled in a case, and that it made no difference whether or not the defendant exhausted his peremptory challenges. In Ray v. State, 4 Texas Ct. App. 450, a juror was discharged by the court after being impaneled, and the verdict was found by the eleven remaining jurors; but that was under the authority of a statute (Acts 1876, p. 78, section 19) which is not now the law in felony cases. (Code Crim. Proc. art. 706.) In misdemeanor cases, however, nine jurors may render a verdict. (Code Crim. Proc. art. 707.)

The tenth assignment of error relates to the ruling of the court in rejecting certain evidence offered by the defendant. The State had proved that, on the night previous to the difficulty, the deceased was unarmed, and had proved this in part by the declarations of the deceased. It was a material question in the case, as to whether or not the deceased was armed with a pistol at the time the homicide occurred. In rebuttal of the evidence introduced by the State upon this point, the defendant offered to prove by a witness, Dillard, a conversation which he, the witness, had with deceased on the night prior to the killing in regard to deceased’s having a pistol. *581Upon objection made by the State, this evidence was rejected upon the grounds that it was hearsay and irrelevant. While, as a general rule, this evidence would not be admissible, yet, we think, in this case, inasmuch as the State had proved by the declarations of deceased that he was not armed with a pistol, it was competent for the defendant to rebut such declarations by the contradictory declarations of deceased showing that he was armed with a pistol. We think the court erred in rejecting the testimony offered, under the circumstances in this case.

The eleventh, twelfth, fifteenth, sixteenth and seventeenth assignments of error relate to the charge of the court. The first objection made to the charge is thát it does not sufficiently or properly define and explain implied malice. The charge defines murder in the language of the statute, and then proceeds: “All murder committed with express malice is murder in the first degree, and all murder committed with implied malice is murder in the second degree; therefore the distinction between express and implied malice determines whether a murder is of the first or second degree.” The charge then explains express malice and murder in the first degree, and with regard to implied malice and murder in the second degree reads as follows: “ Implied malice is not, as is express malice, a fact, but is an inference or conclusion founded upon the particular facts and circumstances of the case as they are ascertained to exist; and the law implies malice from every voluntary killing of a human being when the facts and circumstances of the killing do not show upon the one hand express malice, nor upon the other any justification or excuse.”

The particular objection urged to this charge is that it instructs the jury, in effect, that if the killing was voluntary it was murder, unless there were circumstances attending ■ it which would justify or excuse the act, whereas the law is that it would not be murder if the *582circumstances attending it brought it within the definition of either negligent homicide or manslaughter. This charge, standing alone, is certainly obnoxious to the objection brought against it. It excludes negligent homicide and manslaughter, and makes the homicide murder unless the attending circumstances show it to be justifiable or excusable homicide. This was of course a mere oversight in the learned judge who gave the charge, and, considering his charge in the case as a whole, a person conversant with law would not be misled by the incompleteness of the paragraph quoted, though we are not prepared to say that it was not calculated to mislead the jury. In Sharp v. State, 6 Texas Ct. App. 650, the following charge defining implied malice was approved: “Implied malice is that which the law infers from or imputes to certain acts. Thus the law implies malice from the killing of a human being, unless the circumstances make it evident that the killing was either justifiable, or, if not justifiable, was so mitigated as to reduce the offense below murder of either the first or second degree.”

It is also objected to the charge that it failed to instruct the jury as to every phase of the case as presented by the evidence, in this, that the facts of the case demanded of the court to give in charge subdivision 2 of article 597 of the Penal Code, which article prescribes the “adequate causes ” that will reduce a homicide to manslaughter. Subdivision 2 prescribes as an “adequate cause” “A serious personal conflict in which great injury is inflicted by the person killed, by means of weapons or other instruments of violence, or by means of great superiority of personal strength, although the person guilty of the homicide were the aggressor, provided such aggression was not made with the intent to bring on a conflict and for the purpose of killing.” We think this provision of the law should have been given in charge to the jury, *583under the facts of this case. It was a part of the law of the case, and the court erred in omitting to give it.

There are other objections made to the charge of the court which we do not think are well founded, nor do we think that the defendant succeeded in his effort to show that the juror Tomberlin was a prejudiced juror.

Because of the errors we have mentioned, the judgment of the court below is reversed and the cause is remanded for a new trial.

Reversed and remanded.