The offense is rape; the punishment, ten years.
Bill of Exception No. 1 complains of the action of the court in declining to order mistrial and discharge the entire jury panel after one juror, of the six selected and sworn, who was not challenged by either the state or the defense, was excused by the court.
Th trial judge, acting under authority of Lee v. State, 164 Texas Cr. Rep. 532, 301 S.W. 2d 114, called Juror Katz from the jury room and excused him under the following circumstances:
The juror was sworn and empaneled after he was examined by both sides and accepted as the fifth juror. Then a sixth juror was accepted and sworn.
At this point the trial judge received a note from Juror Katz stating that he desired to change two answers he gave to Mr. Calamia, stating “(1) It might embarass me-to find against *322Mr. Ed Berliner (Assistant District Attorney). (2) My answers with reference to suspended sentence.”
Appellant’s counsel moved for mistrial upon the basis of the juror’s words, but declined to agree to the court’s suggestion that he say whether he wanted the juror called back to establish the correctness of the statement; if he wanted the court to discharge the juror; if he wanted the court to discharge the juror if what was stated in the note was correct; and whether he agreed to release the Juror Katz and go on without a mistrial.
The court took the motion for mistrial under advisement and the six selected jurors remained together until the next morning, at which time appellant renewed his motion for mistrial.
Juror Katz was then called and examined by the court and by counsel for appellant. He testified that his acquaintance with Mr. Berliner had been so close that his leaning would be toward his side and would influence him in arriving at a verdict. Also he testified that if the defendant was found guilty he would not be in favor of a suspended sentence.
Appellant renewed his motion for mistrial which was overruled, and the juror was excused by the court with the statement: “Both sides are entitled to jurors who do not have any prejudices. I am excusing this juror on the authorities laid down by Lee v. State, 164 Texas Cr. Rep. 532, 301 S.W. 2d 114.”
Appellant urges upon us the authorities holding that a juror in the position of Katz was subject to challenge for cause, but was not disqualified.
Had the trial judge ordered the trial to proceed with Katz on the jury, appellant’s failure to challenge him for cause would have made applicable- the authorities holding that a challenge based on prejudice or bias may be waived.
To say that appellant did not object to Juror Katz remaining on the jury would be in the face of the record. He did not in words challenge the juror for cause, but from the time the writing of the note was made known to him appellant insisted that not only Katz but the entire jury panel be discharged.
The bill does not complain that the five jurors who had been selected should have been discharged because Juror Katz had *323been in the jury room with them. It complains only that the entire panel was not excused and a mistrial ordered.
In Black v. State, 46 Texas Cr. Rep. 590, 81 S.W. 302, the juror was called from the box and excused after he sent a note to the judge saying he had conscientious scruples against the death penalty. Black objected and stated he would claim jeopardy if the entire panel was excused.
The juror was challenged by the state.
In Houston v. State, 162 Texas Cr. Rep. 551, 287 S.W. 2d 643, Judge Davidson in his dissent took the position that the trial judge was without lawful authority to excuse an empaneled juror, and that when conditions or circumstances arise which make it necessary that an empaneled juror be excused the proper and legal method would be to excuse the entire panel. Judge Davidson reiterated his view in Lee v. State, 164 Texas Cr. Rep. 532, 301 S.W. 2d 114, 117, but joined in the affirmance upon authority of the majority holding in Houston v. State to the contrary.
Appellant seeks to distinguish the Lee case because the juror was excused, without being challenged by either side whereas the juror in the Lee case was challenged by the State for cause.
In Mitchell v. State, 43 Texas 512, 515, (1875) four jurors had been selected in the case (murder) when an affidavit was filed stating that one of them had said he wanted to get on the jury to try Mitchell; that he was guilty and that he wanted to hang him.
The defendant would not consent to the court’s announced intention of setting aside this juror, whereupon the court permitted the district attorney to withdraw his acceptance of him and the jury was completed from the venire, defendant excepting.
The Supreme Court of Texas held that, it was not only within the discretion of the trial court but was. its duty to purge the jury and set aside the juror whose presence on the jury would taint the verdict, and that no injury was shown.
Under the authorities cited we find no reversible error in Bill of Exception No. 1.
*324The evidence shows that appellant went to an El Paso residence about midnight and was admitted by an eight-year-old child who resided there with her mother and a three-year-old sister. The mother was not at home and the two children were being cared for by a maid who lived in Mexico.
The maid, who is the prosecutrix, slept in the living room where appellant found her clothed only in her brassiere and pants.
Within a few minutes appellant had sexual intercourse with the nineteen-year-old girl who spoke only Spanish, which appellant did not understand.
Appellant was armed with a pistol which, according to the prosecutrix, he placed on the table near the couch. She testified that she “was not letting him do anything” but when he “tried to get ahold of the pistol” she did not “oppose him any more.”
. Appellant left accompanied by the Mexican girl he had never seen before and both he and a companion had intercourse with her in the automobile while the other was driving.
The girl immediately reported the matter, first by demonstrating to the eight-year-old girl with a toy pistol, and then to her employer who came in shortly after she was returned and the little girl let her in.
Appellant admitted having sexual relations with the girl on both occasions and his companion testified that he had intercourse with her in the car. Both testified that the girl consented, and denied that the pistol was exhibited or used or that any threats were made.
The court submitted the case as one of rape by threats and the state elected to rely upon the act of intercourse in the house.
The district attorney, in questioning an officer who was in search for appellant’s pistol, mentioned a Mrs. Thompson. We find nothing in the record to support appellant’s theory that this was calculated to and did convey to the jury that appellant was a married man. “Mrs. Thompson” may have been appellant’s wife or she may have been his mother, or some other Mrs. Thompson. The record does not show and we cannot assume that the question referred to appellant’s wife or that the question was asked in bad faith.
*325The complaint as to the testimony relating to the prose-cutrix identifying appellant in a line up, in view of his testimony that he was the man who had sexual relations with her, is overruled. If error it was rendered harmless by appellant’s testimony.
The employer of the prosecutrix, and mother of the children in the home where appellant found and had intercourse with the maid, testified that she had gone out with appellant and on one occasion he drove to a motel and asked her to get out.
“Q. And what did you do? A. And I said ‘No.’ Oh Golly! I said: ‘If I were going to fool around I would do it because I wanted to, and not because I was forced into it.’
“Q. And did that seem to satisfy him? A. No.
“Q. And what did he do * *
At this point the court interrupted. Appellant’s counsel stated “A man is on trial here for an offense * * * ” and the court sustained the objection.
In the absence of a motion to strike the testimony above quoted, we perceive no error which would authorize a reversal.
The remaining claims of error have been considered and are overruled.
The judgment is affirmed.