In our original opinion we said a co-defendent was tried on the same day or the day preceding the trial of appellant. This was an error. The other man tried was Graves; his trial was at the same term of court but during the week preceding trial of this case. We make this correction, not desiring to inferentially reflect upon appellant's counsel for failing to recognize the juror on his second appearance.
We have re-examined the first bill discussed in our original opinion, and the evidence heard in support of the complaint therein on motion for new trial. We think our former disposition of the question was correct on the grounds then assigned. See DeShazo v. State, 104 Tex.Crim. R.,284 S.W. 561.
There is another ground to which we call attention. By the recitals in the bill it is apparent that knowledge of the fact that a juror in the present case had also served in Graves' case came to appellant after the evidence had all been introduced in this case, but apparently before argument, and hence before any verdict was returned. No objection was then interposed to proceeding with the trial on account of the juror in question. It has been held many times that if a defendant accepts a juror knowing that he has an opinion, or is otherwise objectionable and subject to challenge for cause, he cannot afterward complain that the juror was not fair and impartial for the very obvious reason that by waiving the objection accused takes a chance on the juror's verdict, and cannot be heard to complain if it is adverse. (See Lowe v. State,88 Tex. Crim. 316, 226 S.W. 674, and authorities cited therein.) In Hughes v. State, 60 S.W. 562, it was discovered while evidence was being submitted that a juror was thought to be biased on account of some expressed opinions regarding the case. Immediately upon the discovery appellant took steps to protect himself. We quote from the opinion.
"* * * we furthermore hold that appellant used due diligence in presenting this motion to the court at the earliest opportunity. While the trial was still pending, as soon as he ascertained the fact of the juror's expressions against him, he made a motion to suspend the trial and discharge the jury and impanel another. While this was correct practice, it wasoverruled by the court: and as has been stated, he again raisedthe question on motion for new trial."
The juror persistently claimed upon the hearing of the motion for new trial that he had formed no opinion as to appellant's guilt upon the trial of Graves; but conceding that he may have done so, it was *Page 325 appellant's duty to complain promptly upon discovering that the juror was probably objectionable. If the juror had an opinion it was no absolute disqualification such as those mentioned in Sub-divisions 3, 4 and 5 of Articles 616 and 619 Cow. C. P., but it might have been the basis for a challenge for cause which appellant could waive. If he had accepted the juror in the first instance with knowledge that he had an opinion unquestionably he would be estopped from complaining later on such ground; if he ascertained it during the trial due diligence would demand that he then complain and not take chances on the verdict. The state could not take steps to relieve the situation because jeopardy had attached; it was only through appellant's action in requesting that the jury be discharged that this question of jeopardy could have been avoided.
The motion for rehearing is overruled.
Overruled.