Pate v. State

ON APPELLANT’S MOTION FOR REHEARING

DICE, Judge.

Since the delivery of our opinion, affirming the judgment of conviction, a brief has been filed in behalf of the appellant.

In his brief appellant urges three claimed errors as grounds for reversal of the conviction.

It is first contended that the court erred in refusing to grant a mistrial when, during the course of the trial, a member of the *129jury became ill, which required the treatment of a doctor. While the record shows that during the trial the Juror Smith did become ill and the jury was retired to the jury room where he was treated by a doctor, there is no evidence that the juror’s illness was such as to prevent him from continuing to serve as a juror in the case.

It is further contended that the doctor’s treatment of the juror and his presence in the jury room constituted reversible error because it was in violation of Art. 671 V.A.C.C.P., which provides: “No person shall be permitted to be with a jury while they are deliberating upon a case, nor be permitted to converse with a juror after he has been impaneled, except in the presence and by the permission of the court, * * *."

In his motion for new trial appellant did not urge as a ground therefor the doctor’s presence in the jury room, and such question is not presented for review. Harvey v. State, 150 Tex. Cr. R. 332, 201 S.W. 2d 42.

Furthermore, appellant’s motion for new trial was not verified by himself or his attorney and is insufficient to present for review the claimed error. Carruthers v. State, 143 Tex. Cr. R. 45, 156 S.W. 2d 988; Pierce v. State, 160 Tex. Cr. R. 646, 274 S. W. 2d 408.

Appellant insists that his written confession introduced in evidence by the state was insufficient because it was not dated, did not contain the proper statutory warning, and was not made to Sheriff Leon Jones, the person to whom the confession states it was made.

We find no merit in such contention. The fact that the confession was not dated did not vitiate it and render it inadmissible in evidence. Leal v. State, 106 Tex. Cr. R. 68, 291 S.W. 226. The warning contained in the confession is in substantial compliance with the statutory warning prescribed in Art. 727 V.A.C.C.P. While the evidence shows that Ranger Ed Gooding typed the written statement made by appellant, the record clearly shows that the confession was made to Sheriff Leon Jones, the person to whom the confession recites it was made.

Appellant’s remaining contention is that the court erred in refusing to permit him to perfect a bill of exception in the *130absence of the jury. Reliance is upon that portion of Art. 759a, Sec. 2(a), V.A.C.C.P., which provides:

“Where the defendant offers testimony which is rejected by the court, the judge, if requested by defense counsel, shall immediately retire the jury and hear such testimony to allow defendant to perfect his Bill of Exception.”

While the record shows that the court did, upon overruling appellant’s motion for mistrial because of illness of the juror, refuse appellant’s request to then call Sheriff Jones as a witness to perfect his bill of exception in the absence of the jury, the record further shows that at such time the court advised appellant’s counsel that he would be allowed to perfect the bill at the first recess or at some other time during the trial. There is no showing in the record that appellant at any time thereafter called Sheriff Jones for the purpose of perfecting his bill of exception in the absence of the jury. Having been offered such opportunity, the court’s refusal to hear the testimony at the time it was offered does not present reversible error. Weeks v. State, 161 Tex. Cr. R. 202, 275 S.W. 2d 684; Davidson v. State, 163 Tex. Cr. R. 640, 288 S.W. 2d 93.

The motion for rehearing is overruled.

Opinion approved by the Court.