McKinney v. State , 31 Tex. Crim. 583 ( 1893 )

Appellant was convicted of the murder of R.L. Haley, and his punishment assessed at confinement for life in the penitentiary; hence this appeal.

1. The application for a continuance was properly overruled. The alleged absent testimony is not probably true.

2. The court did not err in overruling defendant's cause for challenge to the jurors White and Larner. There had not been formed or established in their minds any such conclusion as to the guilt or innocence of the defendant as disqualified them from sitting as jurors in the case. The jurors were excused peremptorily. The bill of exceptions further recites that defendant exhausted his peremptory challenges; "was compelled to accept as a juror J.W. Wood, who in all things qualified himself as a juror upon his examination, though defendant did not wish to accept said juror, and desired peremptorily to challenge him." No error is shown. Hudson v. The State, 28 Texas Ct. App. 323[28 Tex. Crim. 323]; Nalley v. The State, 28 Texas Ct. App. 387[28 Tex. Crim. 387]; Rippey v. The State, 29 Texas Ct. App. 37[29 Tex. Crim. 37].

3. The remarks of the district attorney, complained of in the motion for a new trial, were not objected to at the time they were made, and hence will not be revised by this court. Willson's Crim. Stats., sec. 2321.

4. We do not concur in appellant's contention that the evidence is insufficient to support the conviction. While the testimony is circumstantial, it is strong, cogent, points out the defendant as the guilty party, and excludes every reasonable hypothesis except that of his guilt, and shows to a moral certainty that he, and no other party, shot and killed deceased, and from ambush. We find no error in the record, and the judgment is affirmed.

Affirmed.

Simkins, J., absent.