72 S.W. 1015 | Tex. Crim. App. | 1903
Appellant was convicted of assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of two years. This is the second appeal. See Dodd v. State, 68 S.W. Rep., 992.
Appellant insists that the court erred in overruling his application for continuance for want of the testimony of Jim Vickers and Ward Kendall. The court appends the following explanation to the bill: "I approve this bill with the explanation that same was withdrawn as to the witness Vickers upon agreement of parties to use his evidence on a former trial, which was done. As to the witness Kendall, I made no ruling as to the materiality of his evidence or the diligence used. In the light of the evidence said testimony was not likely true. In the motion for new trial his affidavit was not produced, nor was any excuse for its absence offered. It is not probable that he would have sworn to the facts stated." A careful examination of the record shows that, if said witness had been present, and testified to the facts stated, it would not have been probably true, in the light of this record. The court did not err in overruling the application for continuance.
The second bill complains that the court permitted the State to peremptorily challenge the juror Miller when he was not in the jury box or court room at the time the challenge was made. The court first held Juror Miller disqualified, and subsequently changed his opinion, and so announced from the bench. At this time the juror Miller was out of the courtroom, and the district attorney informed the court that he would peremptorily challenge Miller, and after this statement the juror Miller was not produced in court. We see no error in the ruling of the court.
Third and fourth bills of exception complain of the argument of the district attorney to the jury. We see no error in this; and, furthermore, appellant did not request the court to instruct the jury not to consider these arguments. *482
Appellant insists that the witnesses George Melton and Doc Johnson were not sworn. These witnesses appeared for defendant. It is too late on motion for new trial to raise this question. Goldsmith v. State, 32 Tex.Crim. Rep..
Appellant also urges the misconduct of Reuben Hancock, one of the jurors, which is supported alone by the affidavit of W.T. Dodd. The misconduct complained of is that the juror stated, when questioned for peremptory challenge under the direction of the court, if he knew the defendant, John Dodd — the question being asked of all the jurors collectively, if they knew said Dodd — said Hancock remained silent, and said nothing; that by his silence it was taken that he did not know defendant. To this question one of the jurors replied that he had seen Dodd once or twice around the court, but did not know him. Affiant further states that at the time said Hancock knew defendant well, having known him for years when said Dodd lived with his father at Buttercup, Williamson County; and while residing there Hancock was a customer at his father's store, and lived within six or seven miles of his father, where said Dodd lived. Defendant, John Dodd, testifies that there was a great prejudice against him at Buttercup, in Williamson County, where he formerly lived. Concede the affidavit to be true, it does not show how or wherein appellant was injured; and it is not shown that the juror Hancock had any prejudice against defendant.
Appellant insists that the jury were permitted to separate and walk out in the street, and were not kept together in charge of an officer of the court. There is no bill of exceptions verifying this statement. We do not deem it necessary to consider other errors assigned.
No error appearing in the record, the judgment is affirmed.
Affirmed.
[Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]
