On Motion for Rehearing.
In his motion for rehearing appellant urges error in the refusal of his motion for new trial upon several grounds, mainly because the trial court held that no error had been committed in allowing the juror Darelik to sit in the trial of the case, and also that there was no error shown in the separation of the jury.
Deference to the forcible argument of appellant’s counsel and a desire to be right in *679conclusion has led ns to examine many authorities and mate careful study of these questions. We have been unable to find a single authority which holds that if a juror, competent under the statute, but subject to challenge for cause, sits as a member of the jury with the consent of the accused, this is such error as requires reversal. The contrary doctine seems to be held by all courts and' laid down by the law-writers. Lord Tenterden in Rex v. Sutton, 8'Barn. & O. 417, says that he is not aware that a new trial had ever been granted on the ground that a juror was liable to be challenged if the party had an opportunity of making the challenge and did not exercise it. Mr. Bishop in his New Procedure (2d Ed.) § 932, says that one may waive objections to a juror, and while the jury is being made up, if he is aware of a cause for disqualification and does not make such challenge, it is too late afterward. Glark’s Criminal Procedure, p. 451, says:
“If the defendant knew or could have known that a juror is disqualified for cause, and fails to object to him while the jury is being impaneled, he waives his objection and cannot afterward raise it.”
Volume 12, page 436, Encyclopedia of Pleading and Practice states the rule to be that—
“The challenge for cause may be waived by neglect or omission to challenge when the opportunity is afforded, or by acceptance of the juror.”
This authority (volume 12, p. 538) also says that it is undoubtedly the rule that challenge must be' interposed when the jurors “come to book,” and that after they have been sworn and charged with the case the right of challenge for existing cause is lost, and especially is such the case when the incompetency or disqualification was known to the complaining party. American & English Encyclopedia of Law, vol. 17, p. 1161, lays down the rule that an objection to a juror for incompetence is waived if not made before verdict; and, referring to the fact that all the courts are not in unison as to how far such objections may be made ground of a motion for new trial, this authority states:
“It is agreed that one who knew of a ground of disqualification before or during the trial cannot present such objection for the. first time after verdict, and he must show the actual want of such knowledge on his part.”
In Thompson on Trials, § 114, it is asserted that a known challenge for cause is waived by withholding same and raising it for the first time after verdict. In said section appears the following language:
“For counsel to sit in silence when the court is embarrassed in the process of impaneling a jury, declining to take action on suggestions of the court, and answering that they have nothing to say, and then raise the objection in case the verdict goes against them, is a trifling with the court and with the administration of justice, which is not to be tolerated on the trial of the gravest offenses.”
So in People v. Scott, 56 Mich. 154, 22 N. W. 274, Judge Cooley, discussing the proposition that an objection to a juror, known during trial, comes too late when first raised after verdict, says:
“The notion that an accused party may at pleasure object to the want of qualification in a juror for the first time after verdict against him has no more basis in law or reason than a like claim would have if applied to the main issue on the trial. Every accused party is entitled by the Constitution to a trial on the merits; and if he declines to produce his evidence when his case is brought on, he may, on motion for new trial, alleged his inability to waive a constitutional right with quite as much plausibility as this respondent does in this case. The conclusive answer would be that the case is passed to judgment; and the judgment determines that rights have been observed, and is in fact the conclusion of the competent tribunal in respeot to them. Upon all rights claimed in the political society there must be some authority vested with powers of final judgment, and there must be rules to determine when and how the rights shall be claimed. If a party in any case fails to make his right appear until judgment has passed against him, the judgment, if regular, leaves nothing open to inquiry afterwards.”
Stewart v. State, 15 Ohio St. 155, exhibits a case wherein it was discovered during the trial that a juror was not competent; The trial court asked the' accused what he had to say, and he objected to proceeding with the trial, but further stated that he waived none of his rights. The court discharged the jury. Upon another trial a plea of jeopardy was presented. The Supreme Court affirmed a conviction, and, speaking of what occurred during the first trial, said:
“Looking to the whole colloquy which took place between the court and counsel, it is quite evident that the defendant desired to be regarded as consenting to nothing, which might, in any respect, prejudice his possible right's in any stage of the trial, and that he desired to secure for himself, by objecting to proceeding with the trial, the full right and benefit, in the event of conviction, of a motion for a new trial on account of the fact then * * * disclosed, and at the same time, if possible, to obtain all the chances * * * from the jury then impaneled by refusing to consent to its discharge. He had a clear right to one fair and legal trial by an impartial jury, but his right to demand two trials as a prerequisite to a legal conviction and sentence cannot be conceded. * * •* ‘All general rules touching the administration of justice must be so understood as to be made consistent with the fundamental principles of. justice.’ The plaintiff in error has no right to complain because his own objection was not overruled. * * * The discharge of the jury was not without his consent”
*680—and did not operate as a bar to another prosecution. So in Young v. State, 90 Md. 579, 45 Atl. 531, the court, discussing an objection made to a juror for cause after trial bad begun, said:
“The general practice that prevails here, and in most, if not all, of the courts having our system of jurisprudence, is that challenges for cause must be made before the juror is sworn; and that rule is, without exception, in all cases where the party objecting to the qualifications of the juror had knowledge at that time of the circumstances tending to disqualify, or could have known of them by the exercise of proper diligence, * * * if with such knowledge * * * he fails to make his challenge before the juror is sworn, it must be deemed to have been waived, no matter how good his cause of challenge may be.”
In the instant' case the appellant insists that, inasmuch as our Oonstitution guarantees a trial by an impartial jury, any statute giving him the right to waive a challenge for cause when such cause consists of a formed opinion would be in derogation of such constitutional provision, and therefore inoperative. We find that in most of the Constitutions of the states of the Union the same guaranty is given, and this is true of each . of the states whose opinions follow. In Keener v. State, 18 Ga. 194, 63 Am. Dec. 269, wherein a juror stated that he had an opinion on the case, no challenge was made, and the juror served. In affirming the case the Supreme Court said this question as to the competence of the juror was not one they could be called on to decide, as there was no attempt to get rid' of him in the trial court, but he had been accepted as he was without objection, and that the maxim applied that no one could take advantage of a wrong to which he had knowingly agreed. Many authorities were cited that an omission to challenge a juror for a known cause operates as a waiver, and it would be most unreasonable to allow a party the benefit of a verdict, if favorable, and of a new trial if the result be adverse. In Van Blaricun v. People, 16 Ill. 364, 63 Am. Dec. 316, a juror answered that he had an opinion about the case and the defense accepted him, but the trial court stood him aside of his own motion; and the case was reversed by the Supreme Court for such action. In Booby v. State, 4 Yerg, 111, the Supreme Court of Tennessee held in a case where it was set up in motion for new trial that a juror had bet on the outcome of the case, that such conduct was a gross immorality, and severely reprehensible, but declined to .reverse the case because it was not shown that this matter was not known to the accused at the time of trial. The court said:
“The law will not permit him to lie by, take the chance of a verdict in his favor, and, if adverse, bring forward his exception, waived at the proper time for making it.’*
In Lisle v. State, 6 Mo. 426, the court said:
“The only other question for consideration is the propriety of refusing to grant a new trial in consequence of the alleged incompetency of one of the jurors. Whether this juror was incompetent or not I do not think it necessary in this case to determine. It has been sub-gested in argument that the section of our statute (Rev. Co. 490, § 11), which provides that a juror, who declares on his voir dire that he has formed and expressed an opinion, may nevertheless be sworn if that opinion be grounded merely on rumor, and is not such as could bias or prejudice his mind, is an evasion of the constitutional requisition, which declares that every offender shall have a fair and impartial jury. It is supposed that a juror who has formed an opinion, no matter from what sources of information, is not such an impartial juror as the Constitution contemplates. It may be said, however, in relation to this, that it might be a nice point in metaphysics to determine how far the mind was compelled to assent to or dissent from the truth of a supposed state of facts, when presented to its contemplation, and that for the ordinary purposes of life, we are well assured that an opinion or rather inclination of the judgment, founded on a supposed state of facts, when it is unaccompanied with any prejudice or ill will to the parties concerned, will very readily be removed and changed by the presentation of a different state of facts, and the person whose judgment is invoked is as capable of doing justice as though he had never heard any incorrect or imperfect statements in relation to the matter. However this may be, it is of no consequence for the decision of this case whether the juror was incompetent or not. If the juror was incompetent, and that incompetency was known to the defendant before the trial, he cannot now seek to reverse the judgment on that ground.
“This is not only consistent with justice, but amply sustained by the authorities, without, so far as I have been able to discover, a dissenting voice. 3 Marsh. 330; 1 Binney, 27. 4 Bibb, 272; 4 Littell, 118. The case of Bell v. Howard is directly in point. The court said, in relation to such an objection, ‘It is apparent that when the juror was called on the trial, he disclosed the fact of his having made up an opinion before he was sworn. Bell should therefore have objected to the juror before he was sworn, and, having failed to do so, it was too late after trial, to make the ineompetency of the juror a ground for a new trial. 4 Litt. 118.
“The consequences which would follow any other doctrine seem indeed too monstrous to be tolerated. I apprehend, on this point, there can be no difference in the rule in civil and criminal cases, and if in civil cases either party may receive incompetent jurors, and, after taking the chances of the opinion of the juror being in his favor, make it a ground for reversing the verdict, when it is discovered to be otherwise, there could be no end to litigation.
“It has been urged, however, that the answer of Morrow, the juror, to the double interrogatory propounded to him, being general, might have been applied by the defendant to either branch. *681of the question, and he might have been understood by defendant to have formed an opinion, but not to have expressed one. If the answer of the juror was equivocal, it was the duty of the defendant to have obtained a more satisfactory one, at the time. He had ample power for so doing, and in the event of a remaining dissatisfaction he had his peremptory challenges, by which the juror could have been disposed of. Our law, in tenderness to human life, has thrown most ample guards around the accused; it not only yields to every just requisition, but allows much even to the whims and caprices of the defendant, so that not only an impartial public may concur in the justice of his sentence, but even the prisoner himself may be satisfied that all his fancies have been consulted in the choice of his triers. Counsel are assigned him to enable him judiciously to use all these advantages. If, however, he will voluntarily waive these privileges, he cannot afterward complain of his own laches.
“Judgment affirmed.”
So in the case of Givens v. State, 6 Tex. 343, our Supreme Court said that the alleged partiality of a juror did not entitle the defendant to a new trial. The court used the following language:
“The objection to the juror was known to the defendant before the trial; and it is well settled that when a party has accepted a juror, knowing the objection, he cannot, after verdict, make that objection ground for a new trial. * * * The law will not permit a party, by thus holding his objection to the juror in reserve, to take two chances of obtaining a verdict in his favor. If the defendant supposed the juror partial, and indisposed to give him a fair trial, he should have madé his objection known before accepting him as a juror. Not having done so, he waived the objection.”
So in Hanks v. State, 21 Tex. 526, complaint was first made in motion for new trial that a juror sat who had prejudged the case. Judge Koberts said:
“Every criminal has a constitutional right to be tried and punished, if guilty, by an impartial jury. * * * A loose expression of the juror, not indicative of a settled mind,"would not avail the defendant, * * * nor would it avail the defendant had it not been shown by him in his affidavit that he was not apprised of the prejudice of the juror until after the trial.”
It is obvious that to permit one to waive the challenge for cause, when the ground therefor is known by him to exist, when the jury is being selected, and to then allow him to raise the same objection at any other stage of the proceeding, would be tantamount to allowing him a second challenge for the same cause in the event he is convicted. In Baker v. State, 3 Tex. App. 525, it is held that in forming the jury each juror must be examined separately, and be subject to challenge for cause or peremptorily separately, and that these things must be done before the juror is impaneled, and that to challenge afterward would not be allowed except for some cause not discoverable on the examina* tion of such person. In Roberts v. State, 30 Tex. App. 291, 17 S. W. 450, Judge Davidson says:
“In so far as the juror Scollard is concerned, it is sufficient to say that defendant accepted him and retained him. He was not forced upon the defendant, nor did he seek to have the juror set aside when it was ascertained that there was a possibility of his being prejudiced against him. 1-Iis simple suggestion to the court that he would agree to excuse the juror was not sufficient. If the juror was obnoxious to defendant, he should have moved at once, and promptly, to set him aside, if the legal grounds therefor existed. Willson’s Grim. Stats. § 2293, for collated authorities. There was 'no bill of exceptions taken or reserved in this matter until after the trial of the cause and verdict returned into court.”
So in Keaton v. State, 41 Tex. Cr. R. 621, 57 S. W. 1125, the same learned judge held, as to a juror who had a fixed opinion as to a material part of the state’s case, as follows:
“While I believe the cause for challenge should have been sustained in regard to this juror, yet this was waived by appellant’s refusal to exercise his peremptory challenge, which he could have done. When the cause for challenge was overruled, he accepted the juror without having exhausted his peremptory challenges. Thereafter there was no legally objectionable juror placed upon the jury. If appellant was not satisfied with the juror Warren, he should have exercised his peremptory challenge. Not having done so, he is in no position to complain.”
We might multiply authorities, but the proposition seems’sufficiently supported, that appellant having waived his right to challenge the juror Dhrelik, and having reserved no bill of exceptions at the time to his services as a juror, he cannot thereafter raise the same objection in the motion for new trial. Appellant insists that, regardless of his own attitude, the trial court should have stood him aside. The rule seems to be otherwise. In Greer v. State, 14 Tex. App. 179, it was said by Judge White that:
“A juror who is subject to challenge for any of the causes mentioned in the statute is not ipso facto absolutely incompetent as a juror, except in the cases mentioned in the third, fourth, and fifth subdivisions of article 636 [now article 692]. * * * As to disqualification for any of the other causes, no such inhibition exists in the law; and, as to such other causes, a defendant may waive them, and thereby make the juror competent, notwithstanding the existence of such cause.”
And this case was reversed and remanded because the trial court of his own motion excused certain jurors who had disqualified themselves for favor, whom the accused had not seen, fit to challenge for such cause. Our conclusion as to the thirteenth *682subdivision of article 692 is that its language is not intended to require the trial court to act independently of a challenge for cause by either party, but to accurately prescribe the' test which shall be legally sufficient to sustain such challenge when made. Appellant urges the Jones Case, 52 Tex. Cr. R. 303, 106 S. W. 345, 124 Am. St. Rep. 1097, as sustaining his contention. The case was decided by 11 jurors. The constitutionality of said jury was raised for the first time in this court and the contention was upheld. The whole body of our law pertaining to felony trials, both statutory and .constitutional, seems in harmony on the point that a jury must be composed of 12 men. We do not see the similarity of the Jones Case to that now before'us; for our statute says in so many words that the accused may waive anything save a trial by jury. The Spear Case, 16 Tex. App. 98, is again urged as not in accord with our views. Appellant does not bring himself before us within the rales of diligence manifest in said case. A bill of exceptions was taken therein at the time of trial to the action of the lower court in excusing a juror who said he had an opinion which would influence his verdict, and this court upheld such action. The Spear Case, 16 Tex. App. 98, and the Rockhold Case, rendered at the same term of court, 16 Tex. App. 577, announce a doctrine in this regard which has never been cited with approval since, and which we think incompatible with the plain language and context of subdivision 13 of article 692, C. C. P., and the entire body of our law and the decisions of our own and other states. All of that part of said subdivision 13 which comes after the first three lines can only have reference to procedure after a challenge for cause, based on what is contained in said first three lines, has been made. Else, why say that the juror shall first be asked about the conclusion so established? No court takes it for granted before examination that a juror has a conclusion so established. No interrogator of a juror asks him first if his conclusion so established will influence his verdict; and yet the exact language of said subdivision following the first three lines thereof is as follows :
“For the purpose of ascertaining whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusion so established will influence his verdict. If he answers in the affirmative he shall be discharged.”
The literalist would compel the first question to a juror, when this part of his examination is reached, to be:
“Is it your opinion that your conclusions as to the guilt or innocence of the defendant so established will influence your verdict?”
This would be so manifestly wrong as to need no discussion.. Rather would we.-apply the rule of construction which would uphold the law and make this ground one of challenge for cause as it is intended, and not one for peremptory challenge. We would hold that when in the course of his examination by either party a juror so far discloses that he has formed a conclusion which might influence his verdict as to elicit a challenge for that cause, the issue is thus joined, and is for the court, and for the purpose of ascertaining if the cause made the basis of such challenge exists, the court shall ask substantially if such conclusion so established will influence his verdict, and upon receiving an affirmative answer the challenge shall be sustained and the juror discharged; if the answer be negative, the issue still being joined, the court shall further conduct, or cause to be conducted, the examination, and may overrule the challenge and allow the juror, or may sustain it and discharge him. To hold it the duty of the trial court to act under subdivision 13, supra, without challenge would be for this court to strike from said article 692 said subdivision, and to write into our statutes a new ground of disqualification, and also a new ground for motion for new trial. This we decline to do.
Regarding the separation of the jury, we have again examined the facts, as well as our opinion relative to this matter. The juror who had separated from the others testified that when the court adjourned the people flocked out, jury and all, and that he got mixed up in the dark, couldn’t tell one man from the other, and that he walked down the stairway, and the people who were with him went on to the street, and he knew then they were not the jury; that he walked to the corner of the courthouse, and that he met a man and asked him which way the jury went. This man was the district attorney, who told him to go at once to where the jury was. He at once returned to the head of the stairs and rejoined the jury. He testified that not a word was said to him about the case by any one, and that nothing else transpired, except what has been stated. No controversy of these facts appears in the record. We are still of the opinion that this was not such separation as to require reversal. We have always held that in such case, if the state satisfactorily m'et the presumption of injury from such separation by affirmative proof to the contrary, the mere fact of a short separation such as this would not constitute reversible error. In addition to the authorities formerly cited, see Jack v. State, 26 Tex. 1; Stewart v. State, 31 Tex. Cr. R. 154, 19 S. W. 908; Boyett v. State, 26 Tex. App. 703, 9 S. W. 275; Defriend v. State, 22 Tex. App. 570, 2 S. W. 641; Mauney v. State, 85 Tex. Cr. R. 184, 210 S. W. 963. We have again reviewed our opinion, together with the portion of the motion complaining of the action of the trial cpurt in admitting evidence of, gambling transactions, and debts *683between appellant and tlie deceased, are material matters affecting appellant’s motive for the homicide, and we are nnable to conclude that any error appeared therein. These
The rejéction of the statement of appellant’s wife at some time subsequent to the shooting, which was offered in evidence, but not admitted, is again urged as ground for error. As far as is disclosed by allegations in the bill, appellant’s wife was a bystander, not participating in the shooting, and it was not shown that the statement offered in evidence was made in the presence of appellant, nor how near same occurred in point of time to the shooting, nor does said statement appear to be more than the opinion of the wife. Statements of bystanders, made a minute after the .shooting, have been rejected. Casey v. State, 50 Tex. Cr. R. 392, 97 S. W. 496. See, also, Wade v. State, 48 Tex. Cr. R. 513, 90 S. W. 506; Majors v. State, 58 Tex. Cr. R. 39, 124 S. W. 663; Parr v. State, 36 Tex. Cr. R. 493, 38 S. W. 180; Freeman v. State, 46 Tex. Cr. R. 320, 81 S. W. 953. Being unable to agree with any of the contentions made by appellant in his motion for rehearing, same is overruled.