The offense is murder and the punishment is five years in the penitentiary.
The statement of facts was not filed until more than ninety days after the notice of appeal was given and under the statute it cannot be considered. Sec. 5, Art. 760, 1925 Revision C. C. P.
In his motion for a new trial, appellant contends that he was not accorded an impartial jury as that term is defined in the decisions of this court, in that the juror Y. B. Reese was prejudiced against him. The court heard testimony on this issue, and the effect of the testimony was that he stated on his voir dire examination that he did not know the defendant and that he would give him a fair and impartial trial, but that later in the trial he discovered that the defendant was the same party with whom he had had a difficulty on a former occasion. The juror detailed this former difficulty, and if the diligence to discover the prejudice of the juror had been sufficient, we think that he should not have served on the jury. Huebner v. State, 3 Tex.Crim. App. 458; Long v. State, 10 Tex.Crim. App. 186; Sewell v. State, 15 Tex.Crim. App. 56; Pierson v. State, 18 Tex.Crim. App. 524; Lott v. State, 18 Tex.Crim. App. 630; Hughes v. State, 60 S.W. 563; Adams v. State, 245 S.W. 474.
The motion for a new trial, however, shows that the appellant knew at the time that he agreed to accept the juror Reese as one of his jurors, that Reese was the same party with whom he had had a difficulty. He certifies, however, in his motion that he had not told his counsel this fact. The record is insufficient to show that Reese was guilty of any misconduct when serving on the jury. The burden of appellant's complaint is not that he was guilty of misconduct, but that he was not impartial. We have examined the record very carefully and believe that the testimony of the jurors taken on the motion for a new trial *Page 177 discloses no fact and reveals no situation that was not known to the appellant at the time he accepted the juror Reese. The testimony of said jurors is insufficient to show any more than that after the verdict had been reached and the penalty fixed by the jury, Reese then told the jury about his prior knowledge of the defendant and about his prior difficulty with him. It would hardly do to say that the fact that appellant failed to disclose to his counsel his past relations toward the juror Reese could be taken advantage of by him after the verdict had been rendered. The most meagre measure of diligence would have certainly required that he disclose to his counsel his prior knowledge of those summoned on his venire and failing to do this, he cannot be heard to complain that his counsel did not know of a prior difficulty that he had had with one of the jurors until after the verdict had been rendered. None of the cases cited by appellant in his brief and none we have examined go further than to hold that the fact that a prejudiced juror serves on a case where the appellant did not know of such prejudice and had used reasonable diligence to ascertain said fact is sufficient to warrant a new trial. In none of said cases is there a suggestion to the effect that appellant may fail to exercise proper diligence to ascertain the prejudice of the juror or that he may know of his prejudice and fail to challenge him and then complain of such prejudice after a verdict is rendered. The law of this state does not countenance an experimental trial. A party will not be permitted to speculate as to the result of taking a prejudiced juror and then complain because of the verdict rendered against him by the jury on which such prejudiced juror serves.
Finding no error in the record, the judgment is in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.