Appellant was convicted in the district court of Titus county for the offense of manufacturing liquor, .and his punishment assessed at confinement in the penitentiary for a term of 3 years.
The state’s testimony shows that officers discovered a still down south of 'Mount Pleasant, in an old marsh, and that they saw some men walking around and stooping down about the still, and that it was fired up and smoke coming from it; that one of the men discovered the officers, and the parties around the still all ran; that the defendant was running at full speed when, he passed the arresting officer, and that the arresting officer pursued him, and after appellant fell down he was caught; that immediately after he was caught the appellant’s boy came from an opening in the woods, and when the boy came up appellant told him to go on back to the house, and said, “They have got me.” The still when found was a complete outfit and was running whisky, and 3 or 4 barrels full of mash and between 6 and 10 gallons of whisky were found. The testimony shows that the still was in full operation. It was just a minute or two after appellant was caught before the boy came up and the statement above detailed was made.
By appellant’s first bill of exception complaint is made that the witness Gregory was permitted to testify that he looked back around and saw Mr. Thompson coming, and that he and Thompson discussed how they would- approach the still, and stood there two or three minutes before they started walking up on the still. No details of the conversation were given by this witness. Gregory was the officer who made the arrest, and Thompson was the party with him in the raid. We are cited to no. authorities, and know of none, holding that this testimony under these circumstances is not admissible, and in any event this testimony was harmless.
Bill of exception No. 2 complains of the action of the court in permitting the witness Gregory to state that he saw one of appellant’s boys come down there to the still. This testimony was clearly admissible. The state certainly had a right to show and to name all of the parties that were present at the scene of the offense, if any was committed.
What has just been said with reference to bill No. 2 disposes of bills Nos. 3 and 4, which raise the same question in a slightly different form.-
Bill of exception No. 5 complains of the action of the court in permitting the arresting officers, to testify that the appellant told his son, “Go on back; they have got me.” This statement was inade at the very time of-the arrest of appellant, and appellant was arrested while practically in possession of the still; indeed, he was seen to run away from the still and after running less than 50 yards the arrest was made. As above stated, the still was in full operation and whisky was actually being manufactured at the time, and, under the decisions of this court, this testimony was clearly a part of the res gestee.
We have examined bill of exception No. 6, and fail to find any error therein.
The bill of exception prepared by the court shows that the district attorney asked the defendant on cross-examination if he had not been indicted in the court for selling liquor. This court has uniformly held that it is .proper matter of impeachment to show that a witness testifying has been formerly indicted for a felony, where the evidence does not show that the indictment is too remote. There is nothing in this bill of exception showing that the former indictment was too remote to make an inquiry into it admissible..
Appellant complains of the action of the court in not granting him a new trial because the juror W. A. Hayden sat on the jury that tried his case; the appellant’s contention being that the juror was prejudiced against the appellant and had made reference to appel*1052lant’s bad reputation, and because tbe juror bad made tbe statement before going on tbe jury, wbicb statement was unknown to appellant, that appellant ought to be convicted and that be would like to serve on bis jury and put bim in tbe penitentiary. Jn bis motion for a new trial appellant alleges that W. A. Hayden, one of tbe jurors selected on' tbe jury that tried bim, prior to tbis trial declared be would like to get on defendant’s jury; that be would convict bim and send bim to tbe penitentiary and make bim work. 20 years; that be bad defrauded the Farmers’ Union, and never did any work. Tbe juror on bis voir*dire denied that he bad any opinion or bias or prejudice against tbe defendant.
It will be observed from'an inspection of tbe motion for a new trial that appellant did' not allege and swear that be was not informed of these facts when he accepted tbe juror Hayden as one of tbe jurors; neither is there any proof offered on tbe motion for a new trial showing that tbe appellant bad no knowledge of these facts at tbe time be took the said juror, and, in tbe absence of a showing to tbe effect that when he accepted tbe juror Hayden be was not informed of tbe facts set forth in the motion, tbis court will not reverse on account of said statements alleged to have been made by tbe said juror Hayden.
Before this court would be authorized to reverse a case oh account of. matters of tbis kind, it must be shown, not only that an effort was made before accepting tbe juror to ascertain whether he bad expressed an opinion of the defendant’s guilt or whether be bad a prejudice against tbe defendant, but also that it was through no lack of diligence that' tbe defendant was deceived by the answer of tbe juror; and it has been uniformly held that tbe burden is on tbe defendant under these conditions to allege and prove that be bad no knowledge of such prejudice or of such statement at tbe time that be accepted tbe juror. McWilliams v. State, 32 Tex. Cr. R. 270, 22 S. W. 970. See paragraph 7, § 565, p. 288, Branch’s Penal Code, for a full collation of authorities on tbis question.
Finding no error in tbe record, it is our opinion that tbe judgment should be in all things affirmed.
PER CURIAM.Tbe foregoing opinion,of the Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court.