Appellant objects to the disposition made of his bill of exception, insisting that we misapprehended it, and now urges that it was intended to bring forward a complaint of misconduct of the jury.
In his motion for new trial appellant for the first time complained of certain argument of the District Attorney, averring in connection therewith that the jury considered such argument but for which the penalty assessed would likely have been different. He could not well urge that no conviction would likely have resulted in the absence of such argument because a plea of guilty had been properly entered. There is no averment in said motion of any misconduct of the jury further than that it is alleged they considered the improper argument against which no complaint had been interposed. Upon the hearing of said motion appellant offered two jurors by whom he proposed to prove that the jury was influenced by the District Attorney's argument, and his bill is really a complaint at the court's refusal to receive the evidence of these jurors. The whole matter goes back to the alleged improper argument. In the absence of timely objection to it the incident cannot be considered, as will appear from the authorities cited in our original opinion. We may add that in view of the agreement of appellant entered into in open court with the District Attorney, as shown by the court's explanation to the bill of exception, it may be seriously questioned whether the argument was so seriously improper as is now claimed.
The motion for rehearing is overruled.
Overruled.