The offense is the unlawful sale of intoxicating liquor, and the punishment is one year in the penitentiary.
The state suggests that the statement of facts was filed too late to be considered. The record discloses that the motion for a new trial was overruled and the notice of appeal given on the 9th day of December, A.D. 1925, and that the statement of facts was not filed in the court below until the 19th day of March, 1926. Under Subdivision 5, Art. 760 of the 1925 Revision of the C. C. P., a statement of facts filed more than ninety days after the notice of appeal is given cannot be considered by this court. Under the terms of this statute, the statement of facts will not be considered.
In the absence of a statement of facts, bill of exceptions No. 1 is the only one that presents matters that could present reversible error. This bill complains at the court's action in sustaining the state's challenge for cause to certain jurors. The bill shows that the state asked the jurors in a body if they had formed an opinion as to the guilt or innocence of the defendant and from what they had heard might such opinion influence their verdict if taken as a juror in the case, and that some of such jurors answered "Yes," and the District Attorney then challenged said jurors for cause, and said challenge for cause was sustained. *Page 80
We have many times suggested to trial courts the propriety of allowing to appellant's counsel latitude in the examination of jurors, in order that the right of a peremptory challenge may be properly exercised. We think it also true that considerable latitude should be allowed to enable the party on trial to determine the correctness of a state's challenge for cause. In the instant case we do not think the trial court should have refused appellant's request to examine the jurors. A few brief moments would have sufficed to have eliminated the question from this case, and certainly no harm could have been done the state in permitting counsel for the appellant to satisfy himself as to the qualifications of the jurors challenged. It does not follow, however, that because we think the court should have permitted counsel to have interrogated these jurors that his failure to do so constitutes reversible error. The bill of exceptions presenting the matter does not show or attempt to show that any objectionable juror was taken on the case and fails to show or suggest that any injury was done to the appellant by reason of the court's ruling, and fails to show that appellant exhausted his peremptory challenges. The mere fact that a qualified juror may be improperly excluded by the court is not within itself sufficient grounds for reversal of the case. The bill of exceptions must go further and show that the appellant suffered some injury by reason of the court's incorrect ruling. It has been frequently held where an appellant's challenge has been overruled that unless the bill of exceptions shows that one or more of the jurors who tried the case was objectionable, the error in overruling the challenge for cause by the court will not be revised on appeal, although appellant exhausted his peremptory challenges. Myers v. State, 7 Tex.Crim. App. 653; Ellis v. State, 154 S.W. 1012. Also see Sec. 543 Branch's Ann. P. C. for collation of many authorities on this question.
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.