In the record in this case appears the following entry, to wit: “Thursday, April 23, A. D. 1885, being the fourth day of the fourth week of the term. How comes the grand jury, thirteen members thereof being present, and through their foreman, J. S. Jagers, deliver to the judge of this court-in open court the following named true bill of indictment, to wit: The State of Texas v. W. J. McNeese, No. 1811. Robbery.”—It therefore affirmatively appears from the record before us that the pretended indictment upon which this conviction is founded was presented in court by a body of persons numbering at least thirteen.

*51In Lott v. The State, 18 Texas Ct. App., 627, it was held by this court that a legal grand jury, under the Constitution of this State, must be composed of twelve men, no more and no less, and that a bill of indictment prepared by thirteen men, purporting to be a grand jury, was a nullity, and did not confer jurisdiction of the case upon the court in which it was preferred. It was further held in that case that this objection to an indictment was a fundamental one; that it was jurisdictional, and could be urged at any stage of the proceeding in the trial court, or in this court,— or that, if it affirmatively appeared from the record that the defendant had been convicted of a felony, without being indicted therefor by a grand jury, this court would set aside the conviction and dismiss the prosecution, although the defendant had not in any manner made the objection. In that case we stated fully the reasons and the authority upon which we based our judgment. After further reflection upon, and investigation of, the subject, we are more firmly grounded in the correctness of the conclusions arrived at, and announced in the opinion in that case.

It will not be amiss here to recite the history of the legislation in this State concerning the organization of grand juries, and to deduce from this history the object which the convention had in view in incorporating into our present Constitution the provision that a grand jury shall be composed of twelve men. (Const., art. V, sec. 13.) Ño similar provision will be found in any of the other previous Constitutions of the State. Up to the time that our present Code of Criminal Procedure became operative, grand juries were organized in accordance with common law practice. At common law a grand jury consisted of not less than twelve nor more than twenty-three men, the concurrence of twelve of whom was required to find a bill. (1 Bish. Cr. Proc., sec. 854; Whart. Cr. PI. & Pr., § 341.) Article 338 of the original Code of Criminal Procedure fixed the number of the grand jury at not less than fifteen nor more than twenty. Twelve constituted a quorum. (Art. 370.) These provisions existed until our present Constitution was adopted, and were changed, in the Revision of the Code, to accord with the Constitution; that is, were so changed as to make a grand jury consist of twelve men, nine of whom should constitute a quorum. (Code Grim. Proc., arts. 368, 371, 376 and 390.)

Prior to this constitutional limitation it was a common practice to organize grand juries composed of twenty members. Each of these jurors were entitled to receive from the treasury of the county $1.50 per day for each day they served as jurors. This entailed upon the counties a heavy expense. It was, obviously, to *52relieve the tax payers of this expense, as far as possible, that section 13 of article Y of the Constitution was provided. It was a measure of economy, the effect of which would necessarily be to lessen the expenses of the grand jury system very greatly, without impairing its efficiency. To effect this object the more certainly, the framers of the section used the emphatic language that a grand jury shall be composed of twelve men, thus leaving no room for legislative or judicial discretion as to number in the organization of the grand jury. It is a provision having for its purpose, not so much the protection of those accused of crime, as the relief of the tax payers, who had to pay the jurors. In the interest of the accused citizen, it fixes the minimum number at twelve. In the interest of the tax payer, it fixes the maximum number at twelve, instead of twenty, as it was before. Under this provision a body of men numbering either less or more than twelve is not a grand jury, and the action of such a body cannot confer jurisdiction upon a court.

It is insisted by the assistant attorney-general that we should consider the word thirteen in the entry we have quoted as a clerical mistake, and presume that the grand jury which returned the indictment was composed of twelve men. This would, we think, be carrying the rule as to presumptions too far. It is permissible for this court to hold verbal, or grammatical errors, which do not affect the sense, to be immaterial, but in a case like this, where the error is a vital one, going to the very foundation of the proceeding, it would certainly be a great stretch of judicial authority to treat it as merely clerical, especially when there is nothing in the context or in any other portion of the record showing it to be such.

It is unnecessary that we should determine other questions presented in this case. Because the defendant has not been tried and convicted upon an indictment of a grand jury, the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

[Opinion delivered October 17, 1885.]