1 It is shown by a bill of exceptions that one Forehand was offered as a juror in the case, and, after answering the statutory questions in a manner showing him to be a qualified juror, he was further questioned by the State’s counsel, and stated that on the previous day he had met the defendant and had a conversation with him, in which conversation he had told the defendant, speaking with reference to this case, that he hoped, or he believed (he did not remember which word he had. used), that he, defendant,- would come out- all' right. ■ Thereupon *549the State challenged the juror for cause, and the court sustainedl ■the challenge and stood the juror aside.
We cannot say that in this action of the court there was any-! error. It was the duty of the court to see that a jury was impanelled, composed of men who were free from all bias for or prejudice against the defendant; who were impartial towards either the State or the defendant. In determining as to the fitness of a juror, the question is largely one of discretion with the trial judge. He has the proposed juror before him; observes his manner of answering questions, his appearance and many other indications which cannot be brought before this court; and hence the trial judge is in a much better condition to pass upon the fitness of the individual to serve as a juror in the case, than this ■court can be from the record alone. Such being the case, this court will not revise such action of the trial judge unless it should be made apparent to us that the trial judge had abused ■the discretion confided to him, to the injury of the defendant’s rights, or that he had infringed the law. (Ray v. The State, 4 Texas Ct. App., 450; Gardenhire v. The State, 6 Texas Ct. App., 147; Wade v. The State, 12 Texas Ct. App., 358.)
It is by no means apparent to our minds in this case that the proposed juror was not subject to the challenge for cause made by the State. He had conversed with the defendant about the •case, and had expressed to him a hope or a belief that he would come out all right. While this alone might not be sufficient to disqualify a juror, yet, in connection with other matters appearing before the trial judge, he might be fully satisfied that the individual was not impartial, and not a fit juror for the case. ‘Thus, in this instance, the proposed juror, when first asked if he had any conversation with anyone about the case, stated that he did not remember any such conversation, and it was not until the time and place and party with whom he had such conversation had been called to his attention, that he admitted the same. This apparent unwillingness to mention his interview with the defendant was, to say the least of it, suspicious, and perhaps satisfied the court that the juror was not impartial.
2. Complaint is made that counsel for the prosecution, in their argument to the jury, went out of the record and made statements and arguments which were not authorized by the evidence, and which were calculated to prejudice the rights of tlie defendant. Ho-exceptions were taken at the time to the alleged objectionable course of counsel for the prosecution, and it *550was not until after the conclusion of the trial that the attention of the court was called thereto. While the course of argument pursued by the counsel for the prosecution, in some respects, was not such as perhaps would harmonize with the spirit of the rules governing arguments, and therefore not such as should be-commended, still we have not been impressed in this instance with the view of counsel for defendant, that there was anything-in the remarks or manner of counsel for the prosecution that was materially objectionable, or that was calculated to injure-thy rights of the defendant. lío exceptions to the arguments having been made by the defendant at the time, it is too late afterwards to make objection, unless it be made clearly to appear that he has suffered injury therefrom to his rights. It does not so appear in this case.
3. Several objections are made by the defendant to the charge-of the court. Ho exceptions were made to the charge of the-court on the trial, nor were any special charges requested by the defendant. Objections to the charge are for the first time presented and urged in the defendant’s motion for a new trial. We-have given the charge a careful examination, and in our opinion, when taken and construed as a whole, it is a full, fair and correct exposition and application of the law of the case. That, it did not define “adequate cause,” in instructing upon the law of manslaughter, would be an objection which under some circumstances would be a valid one, if excepted to in time, or in some cases perhaps without any exceptions being taken. But in this case, we find no such state of facts as imperatively demanded a specific explanation of “adequate cause.” There is. no evidence of “adequate cause” to which such an explanation, could be fairly and reasonably applied. There are some portions of the charge relating to manslaughter which are perhaps not strictly correct, but, in view of the evidence in the case, we are of the opinion that there is no such material error in this portion of the charge as was in the remotest degree calculated to injure-the rights of the defendant.
Upon the question of self-defense we think the charge was. full, correct, and as favorable to the defendant as the evidence-would warrant. It is objected to the charge, that the court failed to charge the law in relation to the withdrawal from a-, combat in good faith, by a party who has been engaged therein, and the right of self-defense after such withdrawal. In a proper case, there is no question but that such instructions should be? *551given. In the case at bar, however, we do not consider that the defendant’s rights could have been injured by the failure of the judge to give such a charge. We do not think that the evidence demanded it. It is quite clear to our minds, from the evidence, that the mortal wound had been inflicted upon deceased by defendant before the defendant withdrew, or attempted to withdraw from the conflict.
Opinion delivered March 1, 1884.In the absence of any exceptions to the charge, or of any re-, fused special charges, we are clearly of the opinion that there is no such fundamental or material error in the charge of the court as would warrant us in setting aside the judgment.
We thing the court did not err in overruling the defendant’s motion for a new trial. There is ample evidence in the record-to support the verdict of the jury, and the newly discovered evidence set forth in the motion is not of that character which, on another trial, would be likely to change the result. We cannot perceive how such evidence could affect the issue in the case one way or the other, unless the facts stated had been communicated to the defendant prior to the homicide, and it is not pretended that such was the case.
Believing that the defendant has been fairly tried and legally convicted, the judgment is affirmed.
Affirmed.