The opinion
Attached to his motion for rehearing appellant has some affidavits which were made on December 23, 1913, and filed for the first time in this court. By these affidavits he attempts to explain the facts, and, in effect, contradict them as to one of his bills of exception, to the effect that the district attorney did not peremptorily challenge the absent jurors until the jury had been made up. This can not be done in this court. We must take the record as we find it. If it could be done at all, it should be done in the lower court and within the time prescribed by law. Pye v. State, 154 S.W. Rep., 226 . Besides, we think the case of Miller v. State, 47 Tex.Crim. Rep., even if appellant could change his bill in this court, is in point and decisive against his position, and not distinguishable from this case. In that case this court, through Judge Davidson, said:
"Appellant was convicted for the murder of his wife, and given the death penalty. There are about eighteen bills of exception in the record, most of which pertain to the organization of the jury. The bills, as qualified by the judge in regard to this matter, show that a special venire was ordered. All the jurors, by the sheriff's return, had been summoned. Fourteen of this number had been excused by agreement of parties. Of those remaining, twenty-eight were present, and eight absent. As the name of each of the absent jurors was reached on the call of the list, appellant requested an attachment, and further, that the empanelment of the jury cease until the absent juror could be present; but the court proceeded with the call until the entire list was exhausted. When this stage of the proceedings was reached, appellant's counsel requested that the proceedings be stopped, until the eight absent jurors could be brought into court. When this request was made, the district attorney peremptorily challenged the eight absent veniremen. This was sustained by the court, and the eight challenges charged to the State. It would seem that two questions are presented by these bills. First, should the court have stopped the proceedings until the jurors could have been brought in? Second, was the court correct in sustaining the State in its peremptory challenge to all the absent jurors? Without going into the details in regard to the absent jurors, as to their distance from the courthouse and the probability of securing their presence within reasonable time, or as to how long it may have delayed the proceedings in securing a jury, we would remark that there is no injury shown on this phase. The court, under such circumstances, should issue attachment for absent jurors, but can proceed with the call of the venire, if waiting for absent jurors should produce unnecessary delay in the trial. The statute expressly so provides. This phase of the question might be rested here as correct. But, to the other question: If the court was right in sustaining the State's challenges to the absent jurors, it could *Page 450
not have availed defendant to have them present or to issue attachments for them. This question was before the court in Dodd's case, 44 Tex.Crim. Rep., and similar action in that case by the trial judge to the action of the judge in this case was held not erroneous. The only difference being that this is a capital case, in which a special venire was used, while Dodd's case was a non-capital felony. Here, there were eight jurors peremptorily challenged while absent, while in Dodd's case, only one juror was so challenged. If the jurors had been present, and the State had challenged them peremptorily, it would have prevented appellant using any of them, and being challenged peremptorily it was useless to send for them or to consume the time of the court waiting for them to be brought in, when defendant could not have possibly used them. The State had the legal right to excuse fifteen jurors peremptorily. At the time the eight were challenged, the district attorney had only used one of his peremptory challenges. We see no reversible error in this matter. Osborne's case, 23 Texas Crim. App., 431, does not apply here." This case has been expressly approved by this court in Rice v. State, 54 Tex.Crim. Rep., and Ferris, etc., v. Hawkins, 53 Texas Civ. App. 578[ 53 Tex. Civ. App. 578 ]. The motion for rehearing is overruled.
Overruled.