Appellant prosecutes this appeal from a conviction of murder in the first degree, in which the penalty of death was assessed.
1. The court did not err in refusing the application for a continuance for the witness Gentry. It is not true that this witness would have testified as set forth in the application, which is made fully to appear by the record.
2. Pending the empanelling of the jury, one Hill asked the juror Gaston if he should inform Mrs. Gaston that he had been selected as a juror in the case. Gaston only heard a part of the remark, and did not enter into conversation with Hill. Conceding this remark to be a conversation with the juror, within the purview of article 690 of the Code of Criminal Procedure, it clearly could not have tended in the slightest manner whatever to affect his mind one way or the other in regard to the case. Remarks to or conversations with jurors do not necessarily constitute ground for granting a new trial. In order to entitle a party to a new trial under such circumstances, it must be made to appear that by reason of such conversation injustice was probably done him. It must be such as was calculated to produce a more unfavorable impression upon the mind of the juror than that made by the evidence adduced on the trial, or it must be of such a nature as was calculated to result in probable harm to the accused, in order to constitute a ground for a new trial, or in case of its refusal, to authorize a reversal on appeal. Nance v. The State, 21 Texas Cr. App., 457; Bailey v. The State, 26 Texas Cr. App., 706; March v. The State, 44 Tex. 64. *Page 169
3. When his name was reached on the list, one of the veniremen failed to respond, and defendant requested a postponement of the trial until the juror could be brought into court. This was refused, attachment issued, and the call of the veniremen proceeded. Subsequently the juror made his appearance, and was peremptorily, challenged by defendant. There was no error in this ruling of the court. Hudson v. The State, 28 Texas Cr. App., 323; Habel v. The State, 28 Texas Cr. App., 588; Suit v. The State, 30 Texas Cr. App., 319.
4. When the special venire had been exhausted, the sheriff was sworn and instructed in relation to his duties in selecting and summoning talesmen. Finally, after exhausting two lists of talesmen, twenty-five additional talesmen were ordered and summoned. Upon the return of this list, the defendant "declined to proceed with the case, on the ground that they were not legally summoned, in that the officer had not been sworn according to law." The oath had been administered prior to summoning the first list of talesmen. He had, however, been duly cautioned by the court as to his duty in each instance before summoning additional jurors. It is "not necessary to have the oath repeated every time new or additional talesmen are to be summoned." Habel v. State, 28 Texas Cr. App., 588.
5. The discretion of the court was not abused, nor the rights of defendant infringed, in refusing him permission to interrogate the juror under the circumstances set forth in the bill of exceptions as qualified by the court. The discretion was not exercised until the defendant resorted to irrelevant and impertinent questions.
6. On a former trial, defendant, having been arraigned, pleaded guilty, and his punishment was assessed at death. His insanity at the time of the plea was subsequently made one of the grounds of his motion for a new trial. When the case was again called for trial, he desired to enter a plea of not guilty, and for this purpose was again arraigned. Objection was urged that he could be only once arraigned. We have not been cited to any authority in support of this proposition, nor have any reasons been suggested why it should be held to be correct. We are of opinion that the position is not a sound one. Usually, a rearraignment under the same indictment might be unnecessary, yet it would be difficult to see how it could or should operate as error. Under the facts of this case, the court acted with due prudence and caution in causing the second arraignment.
7. The court did not err in refusing the defendant permission to interrogate Dr. Wallace as to matters shown by the reserved exception. This witness had testified very fully in relation to the matters inquired about, in reply to questions of defendant in person, as well as interrogatories propounded by his counsel. *Page 170
8. The voluntary statement made by defendant was properly admitted. It is shown by the statement itself, the evidence of witnesses, and the defendant's testimony, that he was properly warned and cautioned, as required by the statute, before making it. The fact that he expressed a desire to waive examination would not affect the admissibility of the evidence, nor operate as a reason for its exclusion. Salas v. The State, 31 Tex. Crim. 485 [31 Tex. Crim. 485].
9. The alleged prejudice of the juror Schlissinger is made a ground of the motion for a new trial, and is supported by the affidavits of McFarland and Williams. By these affidavits it is shown that the juror stated that defendant "ought to be hung" and "ought to be burned." This was controverted by the State. In his affidavit the juror denounced the imputed statement in most emphatic language as untrue and maliciously false. The issue of fact thus found was decided adversely to defendant. Willson's Crim. Stats., secs. 2558, 2560. The rule laid down in Washburn's case, 31 Tex.Crim. Rep.[31 Tex. Crim. 352], is correct, but is wholly inapplicable to the facts in this case, for in that case the statement imputed to the juror was not denied.
10. The question of insanity was fully submitted to the jury, in accordance with the settled law of this State. The jury decided this issue adversely to defendant, and we see no reason to disturb their verdict. Motives for the deed are clearly shown. The judgment is affirmed.
Affirmed.
Judges all present and concurring.