Jones v. State

Appellant contends that our holding as to the court's action relative to the juror King cannot be reconciled with Collins v. State, 84 Tex.Crim. Rep., 206 S.W. 688; Jester v. State, 100 Tex.Crim. Rep., 273 S.W. 570, and Quinn v. State,51 Tex. Crim. 155, 101 S.W. 248. In Collins' case it is stated that the juror who had an opinion could have reached it in no other way than by conversation with the witness. The same is true in Quinn's case. In Jester's case the jurors had formed opinions from personal examination of physical evidence introduced by the state upon which in part reliance was had for conviction. In the present case the witness made no statement of the facts to the juror from which the opinion could have been formed.

We have again examined the facts and think the holding in the original opinion relative to the failure of the court to submit the issue as to whether Hobbs was an accomplice is supported by the authorities therein collated.

Appellant complains because evidence was admitted as to the finding of certain goods claimed to have been taken from the burglarized store in an automobile in which appellant and others were riding. The objection interposed was that the officers had no search warrant. The bill might well be dismissed from consideration with the statement that the claim of no search warrant appears in the bill as a ground of objection only, there being no certificate or recital that such was a fact. Many of appellant's bills are in the same condition. With reference to the particular bill mentioned we find that the officer testified *Page 448 that he had consent to search the car. See Hall v. State,105 Tex. Crim. 365, 288 S.W. 202, in which many authorities are collated upon the question of the waiver of warrant.

Appellant further complains that the court permitted leading questions to be asked by the state of its witness Hobbs. There is nothing in the bill to exclude the idea that Hobbs may have been a hostile or an unwilling witness.

"A bill of exceptions taken because of leading questions must affirmatively exclude any idea that under the peculiar circumstances of the particular case the court was justified in permitting the state to ask leading questions, and if it does not do so no error is shown." Montgomery v. State, 4 Tex.Crim. App. 140. In Branch's Ann. Tex. P. C., Sec. 159, many other authorities are collated which support the text quoted. The bill is defective for the omission mentioned.

There may be found in the record in this case twenty-nine bills of exception. Manifestly the time of this court cannot be taken up in a seriatim discussion of them. Each one has been examined in the light of appellant's motion. Some are defective and none of them manifest error.

The motion for rehearing is overruled.

Overruled.