The State moves for rehearing. We reversed the case solely because of the refusal of the trial court to allow the defense to challenge for cause, juror Cochran. From the record it appears that after nine jurors had *Page 451 been accepted and sworn as jurors, — this being a capital case, — the defense informed the court that they had just learned that Mr. Cochran, already on the jury, was related within the third degree to Mr. Collins, private prosecutor, employed to assist the State in the prosecution, and that under subdivision 10, Art. 616, C. C. P., which lays down the rule that one related within the third degree of consanguinity or affinity to the person injured by the commission of the offense, or to the private prosecutor, if there be one, Mr. Cochran would be subject to challenge for cause, — and they wished now to challenge said juror for said cause. The court refused to let appellant challenge Mr. Cochran, who sat as a juror upon the trial of the case.
Upon the hearing of the motion for new trial seven jurors were used as witnesses, and none of them were asked any questions as to the attitude or activity of Mr. Cochran on the jury; nor was there effort otherwise made to show that he was not fair and impartial throughout. Mr. Collins testified on the hearing of the motion for new trial that Mr. Cochran was a cousin of the wife of witness, and that no question was asked Mr. Cochran on his voir dire examination concerning such relationship, which relationship Mr. Collins said was well known throughout the county, both men having lived there all their lives.
What is now Subdivision 10, Art. 616, C. C. P., was first enacted in 1857, in the same language now used, and it has been reenacted without change in each codification of our Code of Criminal Procedure since. That the term "private prosecutor" was then defined by law dictionaries, standard law writers, and the courts of last resort in most of the states of our Union, — as the one who instigates the prosecution, who files the complaint, is without dispute, and it is clear that such was the definition of said term then in common use. See Bouvier's Law Dictionary; Ruling Case Law, Vol. 22, p. 9; Cyc., Vol. 32, p. 361; Corpus Juris, Vol. 50, p. 371; State v. Millain,3 Nev. 409; State v. Cohn, 9 Nev. 180; Eady v. State,10 Ga. App. 818; State v. Snelson, 13 Okla. 88; Sampson v. State,43 Ga. 89; Etheridge v. State, 164 Ga. 53; Commonwealth v. Dever, 10 Leigh, 685 (Va.); Medaris v. State, 18 Tenn. 239; Williams v. State, 9 Mo., 270; Commonwealth v. Gore, 33 Ky. 475; People v. Lay, 193 Mich. 17; Archbold's Cr. Pl., Pr. Ev., pp. 248-259 and 392; Words Phrases, 1st Series, vol. 6, p. 5578; Heacock v. State, 13 Texas App., 97; McInturf v. State, 20 Texas App., 336; McGee v. State, *Page 452 37 Tex. Crim. 669; King v. State, 50 Tex.Crim. Rep.. We might add that in no opinion of this court, or of our Supreme Court, or of the courts of last resort in any other state or jurisdiction known to us, has any other definition of the term "private prosecutor" been announced save that above set out. In such case the rule of interpretation laid down in Art. 8 of our Penal Code has application and controls. This being true, there would be no course open to the trial judge when appellant's request to challenge Mr. Cochran for said cause was presented, save and except to hold that Mr. Collins was not a private prosecutor within the comprehension of said statute.
It is contended, however, in opposition to the State's motion for rehearing herein, that in some instances this court has referred to the attorney employed to assist the State as private prosecutor, or private prosecution. The cases referred to on this point are Crow v. State, 89 Tex.Crim. Rep.; Todd v. State, 93 Tex.Crim. Rep.; Vineyard v. State,96 Tex. Crim. 401; Roberts v. State, 107 Tex. Crim. 139; Blocker v. State, 112 Tex.Crim. Rep.; King v. State, 50 Tex.Crim. Rep.; Moore v. State, 36 Tex. Crim. 574; Burks v. State, 97 Tex.Crim. Rep.. Examining these in order, we find that in Moore v. State, supra, this court said: "The last assignment of error, which questions the action of the court in refusing to permit appellant to show by H who the citizens were who employed private prosecution." In King v. State, supra, the following is said: "It is held in a number of cases that one who contributes to a fund for the employment of counsel to prosecute defendant, is not a private prosecutor within the meaning of the statute." In Crow v. State, supra, mention is made of conversations between "The special prosecutor," the judge and other attorneys. In Todd v. State, supra, reference is made to the argument of one of the "Private prosecutors." In Vineyard v. State, supra, a statement appears that certain bills of exception complain of the argument of the "Private prosecutor." In Burks v. State, supra, mention was made of complaint of argument of the "Private prosecutor." In Roberts v. State, reference is made to a complaint of what was done by one of the "Private prosecuting attorneys." In Blocker v. State, supra, it is said that a bill of exceptions was taken to remarks of the "Private prosecutor."
We have mentioned these in order to show that in no one of the cases, wherein such casual expression was used, was same pertinent to any issue in the case. Apparently the object *Page 453 of the contention last mentioned would be to claim that the trial court herein should have known of these casual expressions and been governed by them in his ruling. Such contention is wholly without merit. As observed, in none of said cases was there any issue before the court as to whether the party referred to as special prosecution, private, prosecutor, etc., was such in law or in contemplation of any statute, and it would not be claimed for a moment that any construction of the term as used in Art. 616, C. C. P., was before the court in any of said cases. It is elementary and announced by all courts and law writers, that precedents consist of the decisions of courts of last resort upon the substantive issues before the court, which are considered by the court, and decided by the court as such. Immaterial descriptives which do not affect the question considered, or the result reached, have no force as precedents. It has been well said that a statement of law becomes a precedent, not because it emanates from a wise and learned man, but because it is laid down by a judge, in his office as a judge, and speaking to a question brought before him as a judge. As said by the Supreme Court of Tennessee, in L. N. Ry. Co. v. Davidson County Court, 1 Sneed, 636:
"It is then the conclusion only, and not the process by which it is reached, — which is the opinion of the court, and authority in other cases. The law is thus far settled, but no farther. The reasoning adopted, the analogies and illustrations presented, in real and supposed cases, in an opinion, may be used as argument in other cases, but not as authority. In these the whole court may concur, or they may not."
If the learned trial judge herein, — when called upon in the exercise of his discretion to pass upon the right of appellant to challenge Mr. Cochran for the cause mentioned, after he had been accepted without any investigation or examination, and had been sworn as a juror to try the case, — found the definition of the term "private prosecutor" laid down in the law dictionaries, and by text writers, and decisions of courts of last resort of all ascertainable jurisdictions, to be all in accord with the definition first above mentioned, — it would seem idle to argue that he should have known of, much less have accepted as precedent to the contrary, the instances of the use of immaterial descriptives in the cases last mentioned. No citator, or digester of opinions, or commentator thereon, would think for a moment of citing or collating as precedents casual expressions in opinions on points not material in the decision of the case wherein used, and certainly neither this nor any other *Page 454 court of last resort has ever undertaken to overturn a settled law upon no better authority than a half dozen loose expressions in opinions of members of the court.
Appellant made no defense to what appears to have been a planned killing of an old man for the purpose of robbery. No testimony was offered in behalf of the accused. All other questions raised on this appeal have been considered, and are not deemed to present error.
Being of opinion that we erred in our reversal, the State's motion for rehearing is granted, the judgment of reversal is set aside, and the judgment will now be affirmed.
Affirmed.
ON STATE'S MOTION FOR REHEARING.