On Motion for Rehearing.
LATTIMORE, J.We have read with interest the motion of appellant, and considered as best we can the points discussed therein. We take it that the question of discrimination against the race to which appellant belongs must be decided on what the jury commission actually did in the drawing of the grand jury and of the venire, and not from what said jury commission thought or felt. Each of the commissioners testified positively that they did not discriminate against the negro race, and that they knew most of the jurors, and that they selected the grand jury from persons whom they knew; and believed to be *1082of fitness for such position. The number of the qualified jurors in the county being shown to be about 6,000, and there being only about 400 qualified jurors among the negro population of the county, and there being an utter absence of any testimony showing that there was an intentional or purposed setting aside or disregarding or passing over the names of any qualified negro juror, we are unable to agree with appellant that there is any testimony supporting his averment of discrimination on the part of said jury commission. It appears from the testimony introduced that at the time the grand jury was drawn, and also at the time the petit jury was drawn, this particular crime had not been committed, nor did the jury commissioners know of any negro who was to be investigated by the grand jury, 'or who might be tried by the petit jury so drawn. Each of the jury commissioners testified that'there was no discussion by them ¿s members of such commission, and no referenc'e made to any race consideration in the matter of drawing said grand and petit jurors. ' There were approximately around 550 white jurors in the county whó were not drawn on either this grand or petit jury. Certainly the mere fact that such persons were not drawn on the jury could not be taken as an intentional discrimination against-them or any holding on the part of the jury commissioners that such people were unfit or unworthy to be summoned on the jury. The mere fact that persons, either white or colored, are not summoned on the jury, does not establish any intentional discrimination against such persons.
Much of appellant’s motion relates to our disposition of his complaint at the argument which he contends was made by state’s counsel. Turning to the record, we find 11 bills of exception, none of which complain of any argument. Article 667, C. C. P. 1925, provides that all complaints of proceedings in any case must be brought forward by bills of exception, signed and approved by the judge of the court, “in order that such décision, opinion, order or charge may be revised upon appeal.” If one objects to argument and presents to the court below a special charge asking that the jury be instructed not to consider such argument, which charge is given, and the record stop there, we necessarily; would be forced to conclude that counsel for the accused was satisfied when such charge was given and desired to make no further complaint. Assuredly, if not so satisfied, under the plain direction of,our statute, he should make known his dissatisfaction by bill of exceptions. There being no bill complaining of any argument, there is nothing before us in regard to such matter. No complaint is made by exception of any improper use of testimony as to the age of deceased, or the' fact that he was married and had children. The testimony to such facts was objected to as having no bearing on the case and as being inflammatory and prejudicial. Said testimony may and may not have had bearing upon the case. The trial judge may have been of opinion and may have believed it to be material. Nothing in the bill presenting this complaint shows to the contrary.
Being unable to agree with appellant, the motion for rehearing will be overruled.