It is shown by the record that the original indictment in this cause was lost or mislaid, and that on the twenty-fourth day of April the district attorney made suggestion of the fact to the court by written statement, and that the instrument presented with his suggestion was substantially the same as that which had been lost; and he asked that it be substituted in lieu of the original lost indictment, and that the clerk be ordered to file said substitute.
After hearing the motion the.court ordered and decreed “that *376the district attorney have leave to substitute lost indictment in this cause, and that the clerk of this court is hereby ordered to file said substituted indictment, and that this cause proceed as the law requires.” It further appears from the record that the indictment was filed by the district clerk on the twenty-fourth day of April, 1883, the same day upon which the motion of the district attorney was made.
We are of opinion that the indictment was substituted in compliance with the provisions of Article 434, Code of Criminal Procedure. The facts that the court ordered the clerk to file the substituted indictment on the same day that the motion for substitution was made by the district attorney (April 24), and that it was filed that day by the clerk, we think sufficiently show that the indictment was, in fact, substituted. Upon comparison it will be found that these facts make out a case essentially different from the cases cited and relied upon by appellant’s counsel, to wit: Graham v. The State, 43 Texas, 550; Clampitt v. The State, 3 Texas Court of Appeals, 639; Rogers v. The State, 11 Texas Court of Appeals, 608; Turner v. The State, 7 Texas Court of Appeals, 596.
When the case was called for trial, after the substitution of the indictment, the defendant made a motion to change the venue of the case, upon the ground that there existed in Trinity county, where the prose. ution was pending, so great a prejudice against him that he could not obtain a fair and impartial trial in said county. This motion was supported by his own and the affidavits of two other parties, residents of the county, as provided by Article 578, Code of Criminal Procedure. Counter affidavits, controverting the grounds relied upon in the motion to change the venue, were filed by the district attorney in opposition thereto.
Evidence was heard by the court upon the issues, and amongst others testifying were the assessor, sheriff, and clerk of the District Court, who deposed that there was no personal prejudice against the defendant in the county, and that the defendant could get a fair and impartial trial in said county. The court overruled the application for a change of venue, and the record shows that a jury was obtained, and that the defendant did not exhaust his peremptory challenges when the panel was filled.
We cannot see that the defendant has made it appear that the court erred in its ruling, or that he has been prejudiced thereby. (Clark’s Crim. Laws of Texas, pp. 482 and 483, and notes.)
*377Three grounds of objections are urged with regard to the jury trying the case. First. With regard to the juror Barnes, because it was claimed that four months before he sat upon the jury he had declared his opinion that the defendant was guilty, and that if he should be on the jury trying the defendant, he would “send him up,” meaning to the penitentiary. Second. D. Ashworth, one of the jurymen, was intimidated and coerced into the finding of the verdict by his fellow jurymen. Third. That one Adkin Dean, an outsider, was with the jury, talking to and tussling with them whilst they had the case under consideration and before they had returned their verdict. These .grounds of complaint as to the jury were supported by affidavits and were controverted by counter affidavits filed by the district •attorney.
In his counter affidavit, the juror Barnes positively and emphatically denied that he had ever made the statements attributed to him; and several affidavits, amongst others those of the sheriff, a justice of the peace, and the county clerk, state that the juror Barnes is an upright, honest, and good citizen, bears a stainless character, is above reproach or suspicion, and is as honest and upright a citizen as there is in the county.
With regard to the coercion of the juror Ashworth by his fellow-jurors, the counter affidavits of seven of the jurymen deny that he was intimidated or coerced. Besides this, wh?n the verdict of the jury was returned into court, finding defendant guilty, the juror Ashworth not only did not complain that he had been coerced into agreeing to it, but assented thereto without any objection. (Fletcher v. The State, 6 Hump. Tenn. Rep., 586; 3 Graham and Waterman on New Trials, p. 1444; Gose v. The State, 6 Texas Ct. App., 121.)
As to W. A. Dean, seven of the jurors, and the deputy sheriff who had charge of the jury, together with Johnson, the juror ■charged with tussling with Dean, all state that no such misconduct or intermingling or tussling with the jury,' as complained of, ever occurred.
We do not think that the court erred in its ruling with regard to the above objections urged to the jury and its misconduct.
Considered as a whole, we are of opinion that the charge of the court fully presented the law applicable to the facts, and the testimony failing to show any complicity on the part of the wit.ness Goings in the theft of the horse, the court did not err, so *378far as he was concerned, in omitting to charge the law with regard to accomplice testimony.
A portion of one paragraph of the charge has been selected by appellant’s counsel in the motion for new trial, assignment of errors and brief as being radically erroneous. The construction sought to be placed upon this particular portion of the paragraph is not warranted by the paragraph in its entirety. As stated above, we think the charge fully contained the law applicable to the case.
The record before us shows that the case has been tried, not only with earnestness and zeal, but with marked ability by the learned counsel representing appellant. We have, however, been unable to come to any other conclusion than that the defendant has had a fair and impartial trial, in which all of his rights have been awarded, and in which the evidence fully sustains the verdict and judgment of conviction. The judgment is affirmed.
Affirmed.
Opinion delivered June 6, 1883.