Hays v. State , 83 Tex. Crim. 398 ( 1918 )

On a former day of this term this judgment was affirmed. In motion for rehearing appellant complains that the court did not notice one of his grounds of the motion for new trial. With reference to that ground it was alleged that the State used eleven challenges instead of ten, and that this fact was not discovered until after the case had gone to the jury. Attached to this ground of the motion is what is termed "Exhibit B," which contains three lists of jurors from which the jury was selected. These lists show that the names of eleven jurors were scratched by the State and ten by the defendant. There is no bill of exceptions reserved and no testimony introduced to verify this in any way, neither as having been the list used by the respective parties in this case or that in fact they were correct. It was simply alleged as a ground of the motion with no facts to verify and no evidence introduced in connection with the matter. We are of opinion this does not sufficiently present this matter for consideration. The usual rule is that all errors with reference to empaneling the jury relied upon must be reserved by bill of exceptions at the time of empaneling the jury, and if this rule is not followed then there must be something shown in the record excusing such want of diligence on the part of the complaining party. A mere statement connected with the ground of the motion would not be sufficient. Appellant refers to the case of Hill v. State, 10 Texas Crim. App., 618, and subsequent cases approving the decision in that case. There is no question of the correctness of that decision, but it seems to have no application to this case. Hill was on trial before a special venire for murder. Eight jurors had been selected and over objection of appellant at that stage of the trial one of the jurors was excused by the court because the juror said his family was sick. This was done over Hill's objection. We are of opinion the opinion was correctly rendered, but it has no application here. As this matter presents itself we do not think it should be considered by the court.

The motion for rehearing is overruled.

Overruled.