The opinion
ON MOTION FOR REHEARING.
MORRISON, Judge.
Appellant has made our reconsideration of this case on rehearing most difficult by predicating his claim for reversal on “Points” rather than upon bills of exception. We have finally located the bills of exception which apply to his “Points” and shall discuss them by number in the order urged.
Bill of Exception No. 6 reflects that defendant’s counsel in his argument to the jury questioned the failure of the state to produce certain witnesses and commented on the ease with which their attendance could have been secured, and in so doing pointed at the district attorney and asked why they were not available. Thereafter, in his closing argument, the district attorney offered to make available to the jury certain sworn statements and grand jury testimony of such witnesses, if counsel for the appellant would agree.
*405 It will be noted that this is not, as in the eases cited by appellant, any argument by the district attorney relating to any objection appellant may have made during the course of the trial to inadmissible evidence. Attention is further directed to the failure of the appellant to move the court to instruct the jury not to consider the statement of the district attorney.
Bill of Exception No. 1 complains of the trial court’s failure to grant a new trial when it was discovered that one of the jurors could not read or write. We held in the original opinion that counsel for appellant knew of the juror’s alleged lack of literacy at the time of his selection and thereby waived such qualifications. We based this upon the testimony of the juror that he had so informed counsel for appellant, under the most revolting circumstances, prior to the trial, and that counsel had replied, “Well, that don’t make a hell of a lot of difference.”
Bill of Exception No. 3 shows the following:
1. The answer of the witness.
2. That after the witness had answered there was an objection.
3. That after the objection there was a request that the jury be instructed to disregard the answer.
4. That the court refused to so instruct.
The bill does not show when the objection was made, that is, how long after the witness had answered, nor does it show why no objection was made before the answer was given.
In Wilson v. State, 87 Tex. Cr. R. 538 , 223 S.W. 217 , we said:
“Bill of exceptions No. 6 shows that after a question was asked, and answered without objection or. claim that there was any misunderstanding, or reason for not objecting before the answer, the court refused appellant’s request to withdraw said answer. It has often been held, in cases of this character, that this action of the court is correct.”
See also Brown v. State, 155 Tex. Cr. R. Rep. 347, 235 S.W. (2d) 142 .
Unless fundamental error is shown, we feel that the above rule should prevail.
*406 Bill of Exception No. 2 shows on its face that it was directed at three separate and distinct matters and therefore presents nothing for our review.
Being of the opinion that we properly disposed of this cause originally, the appellant’s motion for rehearing is overruled.