Appellant insists that we were in error in sustaining the trial court's action in overruling the motion for new trial based upon a contention that Joe Arnold was a disqualified or prejudiced juror. Arnold testified upon his voir dire examination that from hearsay or otherwise there was not established in his mind *Page 30 such a conclusion as to the guilt or innocence of accused as would influence him in arriving at a verdict and that he had no bias or prejudice one way or the other. The fairness of the juror is challenged on the ground that it developed after the trial that this juror had heard a statement made by Frank Rucker that the wife of deceased on the occasion shown in our former opinion had identified appellant. It must be borne in mind that Rucker was not a witness in the case. His statement to Arnold was purely hearsay. If Arnold had answered on his voir dire examination that he had an opinion based upon the hearsay statement of Rucker, but further stated that he felt able notwithstanding such opinion to render an impartial verdict, the court, if satisfied that said juror was impartial, would have been within his discretion in holding said juror competent, and this by reason of the statute itself, Art. 616 Cow. C. P., Subd. 13. In the present case the juror said he had no opinion whatever and upon the hearing of motion for new trial he again asserted that notwithstanding what Rucker had said in his presence and that he had no reason to doubt the truthfulness of his statement, still that when he went into the jury box he entertained no opinion as to the guilt or innocence of appellant which in any manner would or did influence his verdict. The record seems to be silent as to any inquiry of the juror on his voir dire examination which was calculated to elicit from him information as to what he had heard anybody say regarding the case. We think the juror cannot be classed as one having knowledge of some fact which he did not disclose and which characterized him as an unfair or prejudiced juror. Appellant cites Adams v. State, 92 Tex.Crim. R.,243 S.W. 474; Muse v. State, 94 Tex.Crim. R., 249 S.W. 861; McNeal v. State, 101 Tex.Crim. R., 274 S.W. 981; Davis v. State,101 Tex. Crim. 352, 275 S.W. 1029, upon the point discussed. They are not regarded as supporting appellant's position.
Appellant insists that we were in error in sustaining the trial court's action in permitting witnesses to detail what Mrs. Mitchell said to them after they had taken a person before her for inspection. The two witnesses were Mr. Hamilton, the sheriff, and Mr. Murray, the chief of police. Appellant proved that they took one Jones in the presence of Mrs. Mitchell and that she threw up her hands and screamed. The officers immediately removed Jones from her presence. The state then proved over objection that the sheriff returned within two or three minutes at which time Mrs. Mitchell told him Jones was not the man who killed her husband and that *Page 31 within an hour she told the chief of police the same thing. The record shows there was a striking similarity between Jones and appellant. We think the incident properly disposed of in the original opinion as admissible to explain the action of Mrs. Mitchell.
Appellant urges that we were in error in disposing of his contention that the jury received other evidence after their retirement; this being the last question discussed in our original opinion. The wording of the opinion leaves the impression that one of the jurors stated as a fact "that at the time appellant was arrested he, appellant, had shot at a negro twice." In this respect the opinion dealt with the incident in a manner more favorable to appellant than the record warrants. Only one juror was examined by appellant upon the hearing of his motion for new trial. His evidence is brought forward and from it we learn that some of the jurors expressed curiosity as to why so many officers from Abilene were present at the trial, whereupon another juror said in substance that he understood or had heard there had been some shooting there, and that appellant had shot the negro twice. He did not state it as a fact within his own knowledge, but only that such was his understanding about it. The foregoing statement of the occurrence in the jury room shows clearly that it was merely an incidental reference to a matter which was never mentioned at any other time by any of the jury. There is no doubt in our minds that the question presented by the incident was correctly disposed of in our former opinion.
It is again vigorously insisted that the trial court was in error in not permitting Mrs. Mitchell to testify that a fortune teller had described as the murderer of her husband a person similar in appearance to appellant, and that our opinion disposing of this question is erroneous. If the fact of Mrs. Mitchell consulting the fortune teller was an incident upon which argument could be predicated that she was uncertain as to the description of the person who killed her husband appellant had the benefit of it for the court did permit the witness to tell the jury that she had consulted a fortune teller. That incident and the fact that she screamed and threw up her hands when another man strongly resembling appellant was brought before her, are the only acts on her part shown in the record which even remotely question her evidence positively identifying appellant as the slayer. If the bare hearsay statement of the fortune teller sought to be introduced in this instance should be held admissible where would the matter end? Surely if accused could question his identification by proving that a fortune teller described to the identifying *Page 32 witness a man similar in appearance to accused the state with much force could insist that it be permitted to prove — if it could — that another fortune teller described to witness a person of entirely different description notwithstanding which the witness persisted in identifying accused as the slayer. The principle if thus extended would lead to an absurdity and a violation of all the rules of evidence.
Because the severest penalty known to the law has been assessed we have carefully re-examined the entire record to satisfy ourselves that no error was committed in the trial upon which a reversal should properly be predicated; such investigation confirms us in the belief that an affirmance of the judgment was properly ordered.
The motion for rehearing is overruled.
Overruled.