The offense is selling intoxicating liquor and the punishment is confinement in the penitentiary for one year.
Appellant complains because the court sustained a peremptory challenge urged by the state to the juror O'Shields. *Page 159 The court qualifies this bill by stating that the juror said that he was prejudiced against the whiskey law and that the penalty was too severe for the offense. Under this qualification, the court did not abuse his discretion in sustaining a challenge for cause to this juror. If he was prejudiced against the law, this was a proper ground of challenge for cause.
The court did not err in refusing to instruct the jury on the question of appellant being an innocent agent. Elam v. State, 16 Tex.Crim. App. 39; Knight v. State, No. 9697.
Appellant also complains because the court permitted the jury to take with them in their retirement the bill of indictment which contained counts four and five which counts had been quashed. If any error is shown in this matter it is not of sufficient importance to reverse this case. The appellant re-received the lowest penalty under testimony clearly showing his guilt and which testimony was in no wise disputed. It is also true that the court certifies in explaining this bill that no testimony was offered to show that the jury ever read counts four and five after they had retired to consider their verdict.
The evidence being amply sufficient and no errors appearing 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.