The opinion
ON MOTION FOR REHEARING.
GRAVES, Judge.
Appellant takes us to task relative to the original opinion in this case wherein it was said, in substance, that the record does not disclose who composed the jury in this case, whether from the special venire or otherwise. It is well known that in the event of an exhaustion of a presented venire the court has the power, under the law, to order the sheriff to summon tales-men, who, of course, would not be members of such special venire as chosen by the jury commissioners. What was meant by such statement is that the record does not show who were on the jury that tried appellant, nor whether they were members of such original venire or not. It is shown that the jury commissioners selected a grand jury venire composed of sixteen per- ■ sons, two of whom were negroes; that they had present in their deliberations the poll tax list, doubtless in order to comply with the statute, Art. 339, para. 1, C.C.P., which relates to the payment of a poll tax; they also had with them the property tax payers list, as well as the list of jurors selected the previous term, as well as a subsequent term of court as provided by law, and also a list of the members of the Home Guard and also a list of the active firemen, all exempt by law. It is also shown that they actually did select some fifteen or eighteen negroes on these jury lists. Appellant’s main contention herein is that the proportion of colored citizens to white citizens in Polk County being from ten to fifteen per cent colored, that a fair percentage of negroes on such juries would have been much more than the fifteen or eighteen that were selected.
It is not shown how many of these negroes actually selected did appear, nor whether any such sat on this case or not. It is shown that many of the negroes in such county were not qualified jurors, unable to read or write, or having other matters present that would disqualify them from jury service. We do not think it has ever been held that it was necessary, nor even practical, to say that jury services should be divided between the white and colored races in a close proportion to either the percentage such populations bear to each other, or to the percentage of qualified jurors each bear to the other. It is contended that because the jury commissioners utilized the property tax payers’ list, among other lists, in selecting the jury venire for this case, that such utilization resulted in itself as a discrimina
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tion against appellant because of his color. As we are herein criticised for saying in our original opinion, we repeat: Nowhere is it shown that the jury that tried.this appellant was composed of men whose identity corresponds with that of the jurors presented by such commissioners, and, therefore, under the statutes of this State relative to the formation of juries, we do not know whether this jury was composed of negroes or whites, all negro or white persons, so far as is shown in this record.
In appellant’s motion to quash the special venire, based mainly on the fact that it was therein claimed that the jury commissioners acted unlawfully because they utilized the list of property tax payers, there is an assertion made in paragraph 6 thereof that the district judge, in impaneling such jury commission, instructed the commissioners relative to drawing a certain number of negroes for each week. The testimony heard on such motion does not bear out that statement. It does show that the court merely told them to make no distinction between white and colored persons in drawing their lists. It is here noted that the record is silent relative to any bill of exceptions to the refusal of the trial court to quash the special venire herein complained of. See 4 Tex. Jur., p. 209.
Reverting to the confession made by appellant in our original opinion, same is discussed at length, and it is there said that no objection nor exception was shown thereto at its introduction. We have searched the record again and find no bill of exceptions present therein to such statement. In order to preserve such matter for our attention, it has always been held that an objection and an exception to the ruling of the court should have been taken and be found in the record. See 4 Tex. Jur., 208, Sec. 148. Appellant’s motion for a rehearing has certain objections offered by his attorneys to the introduction of this statement, but nowhere is same set forth in a bill, and it was stated therein that appellant’s attorneys did not prepare a special bill relative to the court overruling his objections thereto. Under our procedure we have no right to consider matters not brought to our attention properly; however in an excess of caution and on account of the verdict exacting the death penalty, the matter has been considered by this court.
That there can be no question of this man’s guilt, we take it, can surely be conceded; that with our mixed populations and varied matters that surround our communities and that arise in the enforcement of the law, none want to pay the penalty laid down for a criminal act; that at times this matter of an enforce
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ment of the law becomes difficult and depends upon the ability of a peace officer to unravel that which seems to be a mystery in its inception. That these diligent peace officers, men in whom their community and their State had reposed their confidence, acted within the bounds of reason and fairness with this appellant, seems true to those who have carefully gone over this record more than once. The jurors saw the witnesses; they observed their demeanor while on the stand; they heard their voice, and are in a much better position to know where the truth could be found than are we, who only have the written word to judge of the verity of the statements given in testimony. Appellant’s own testimony, his actions and demeanor, doubtless convinced this jury, as well as the testimony of the officers, that he received no harsh treatment at the hands of the two officers whom he claimed had beaten him.
Under our rules of procedure as well as the law, we think this cause evidences no error that should call for a reversal. The original opinion was earéfully written after much research and study, and to that we now adhere.
The motion will therefore be overruled.