A bill of exceptions recites as follows: “ Whereupon the jury in said cause were sworn as to their qualifications, and upon the examination of said jurors five of said jurors disqualified themselves, and the court ordered the panel filled with other jurors, and the officer proceeded to and did summon said five jurors in the court room; to which the defendant excepted, as they did not belong to the regular panel, and hence could not be summoned in the court room.”
This action of the court in impaneling jurors summoned in in the court room is assigned as error. No doubt this exception was based upon section 22 of the Jury Act of 1876 (Laws 15 Leg., p. 82), which provided that, “in summoning jurors to supply deficiencies in the panel, it shall not be lawful for the sheriff or any officer to summon as a juror any person found in the court house, or court yard, if they can be had elsewhere.” But this provision of law is no longer in force. It was omitted from the Revised Statutes, and was thereby repealed. But even were it still in force, under the decisions of this court rendered while it was in force, the action of the court here excepted to would not be error which would reverse the judgment. (Mathews v. The State, 6 Texas Ct. App., 23; Frye v. The State, 7 Texas Ct. App., 94.)
Another bill of exceptions states that defendant placed upon the witness stand Rufus Clay, his sheep herder, and asked him the following question: “Did the defendant state to you, and in your presence, on the morning and just before he sent you for said sheep, that if it was not his, not to bring it over ?” to which the State objected, which objection was by the court sustained. It is not shown by the bill of exceptions what the State’s objections to this question were. Nor is it stated in the bill of exceptions what answer the defendant expected the witness to make to the question. As the matter is presented to us we cannot say that *153the court erred in refusing to permit the witness to answer the question. In the shape in which the question appears in the bill of exceptions, it is clearly leading, and for this reason alone the court would have been warranted in refusing to allow the witness to answer it. (McCarty v. The State, 4 Texas Ct. App., 461; 1 Greenl. Ev., 434.)
And furthermore, as it is not stated in the bill of exceptions what answer the defendant expected the witness to make to the question, we cannot presume that the answer would have been an affirmative one, and that the defendant had been prejudiced by its rejection. If this proposed evidence had been offered in a proper manner, that is, if the defendant by proper questions could have elicited from this witness the affirmative facts which the leading question propounded to him indicates he expected to prove by him, we think, as part of the res gestee, and bearing upon the issue of the intent with which the sheep was taken, such evidence would have been admissible. But the question of its admissibility is not before us in a shape that we can pass upon it, and we must hold that, as presented in the record, there was no error in the ruling of the court excluding it. (Powell v. The State, 5 Texas Ct. App., 234.)
There is another bill of exceptions in the record, excepting to the action of the court in not permitting a certain question propounded by defendant to a witness to be answered; but we can not, for the same reasons which we have stated with reference to the last noted exceptions, say that the action of the court was error, because the question as set forth in the bill of exceptions was a leading one, and it is not shown what the evidence was that was expected to be elicited by the question.
We have found no error for which the judgment should be reversed, and it is therefore affirmed.
Affirmed.
Opinion delivered May 5, 1883.