Black v. State

DAVIDSON, Presiding Judge.

The motion for rehearing was overruled at a former day of this term. Appellant insists that we pass on one other question suggested, which was not specifically mentioned. The fourth ground of the motion for new trial urged in me trial court alleges that the court, upon the special venire being exhausted, caused the jury for the week to be tendered out of which to finish the jury which was to try him. There was no exception taken to this action of the court at the time the jury was impaneled, so far as this record shows; and the only evidence we have of the fact that this action was had on the part of the trial court is a statement of that fact as the fourth ground of the motion. When the court overruled the motion for new trial, appellant took an exception and embodied the entire motion for new trial in a bill of exceptions. An exception can not be taken to the manner of impaneling a jury in this manner. It must be done at the time the jury is being impaneled, otherwise any supposed irregularities are waived. This is sustained by an unbroken line of authorities. If appellant did not want to select the remaining jurors from the jury for the week he could have excepted at the time they were tendered, but not having done so it was too late to urge it on motion for new trial. The exception taken to the overruling of the motion for new trial will not relate back and be taken in lieu of an exception that ought to have been urged at the proper time. The fact that defendant embodied his exception to the action of the court overruling the motion for new trial does not place the motion for new trial in any better light than if that exception had been simply noted upon the docket. A proper bill of exceptions must be taken when the challenge is overruled. The motion is overruled.

Overruled.