We have in this state no direct statute laying down grounds of disqualification of jurors, but considering Arts. 616 and 619 of our C. C. P., we deduce that persons convicted of theft or felony, or who are under legal accusation of same, and also persons who are insane, or who have such defect or disease as to render them unfit, are the only ones wholly disqualified from jury service. We find in many opinions expressions regarding the disqualification of jurors, or the incompetence of jurors, which are inaccurate to say the least.
Appellant contends strongly in his motion for rehearing that juror Edgar's presence on the jury was such wrong as to make erroneous our opinion declining to reverse for this reason. Admitting that Mr. Edgar was the husband of a woman so related for cause to the prosecutrix herein as that he would have been subject to challenge upon his voir dire; and further that there is no sufficient showing that appellant was guilty of any laches or neglect in the matter of challenging this juror, we have then the question: Was the action of the trial court in refusing a new trial upon the showing made in regard to these facts at the hearing of the application, such an abuse of his discretion as that we should reverse the case?
The rule, as we understand it in this state, is that not only must the accused acquit himself of neglect in such matters, but he must go further and make it reasonably apparent that there was a likelihood of injury to him from the service of such juror. See authorities quoted in original opinion; also Sutton v. State, 31 Tex.Crim. Rep.; Lane v. State, 29 Tex.Crim. App. 310; Williamson v. State, 36 Tex.Crim. Rep.; Mays v. State, 36 Tex.Crim. Rep.; Whittle v. State, 43 Tex. Crim. 472. None of these cases involve the relationship question set up in Subd. 10 of Art. 616, C. C. P., but we are *Page 94 unwilling by our opinion to write into the statutes a distinction which is not laid down there between said Subd. 10, supra, and Subds. 1, 2, 6, 7, 8, etc., of said article. What is here said does not apply when the juror thus complained of comes under Subds. 3, 4 and 5 of said article.
The appellant argues persuasively in his motion that notwithstanding juror Edgar swore that he knew nothing of any relationship by marriage between himself and prosecutrix, he must have known that he was not telling the truth. This was a matter for the trial court, but in this connection we note that two brothers of Mrs. Edgar who were brought as witnesses for the defense on the hearing of the motion for new trial, did not either affirm that he knew Ollie Veatch, prosecutrix in this case. One of said brothers testified that he had never heard of her, and did not know that Sam Veatch had a daughter named Ollie. The evidence further tends to show that juror Edgar lived in a portion of the county far removed from that part of said county in which the alleged rape was committed and where the girl and her father lived. We also note that distinguished counsel for the appellant testified that he had lived in the county for many years, had practiced law there for twenty-one years, and had a wide acquaintance, but he does not state that he knew any fact or circumstance which would have led him to make a more rigid inquiry of juror Edgar upon his voir dire. In fact counsel admitted that he asked the juror no question at all regarding the matter, from which we infer that the only examination given the juror was by the court or by state's counsel, and was probably a general inquiry made of all the jurors at the same time.
Appellant cites in his motion the cases of Page v. State, 22 Tex.Crim. App. 551; Powers v. State, 27 Tex.Crim. App. 700, and Wright v. State, 12 Tex.Crim. App. 161, among others. Said cases present facts only partly similar to those before us, and in so far as the opinions advanced the suggestion that jurors were incompetent or disqualified, same are not accurate. There is not the slightest reference to the question of injury, and we presume that the issue was not raised by the facts in either of said cases.
A somewhat different rule obtains in this state when such questions appear to have been presented in limine, in the beginning of a trial from that which governs when such matters are brought forward for the first time in connection with the motion for a new trial. In the latter case the court below is called upon to say whether, in the light of all the facts *Page 95 before him, the matter now complained of might have operated to the hurt of the accused. His primary decision of this question is subject to the review of the appellate court. If the trial court thinks injury may have resulted, or he entertains serious doubt on the subject, a new trial should be granted. If we think his discretion was abused, or entertain serious doubt on this subject, we would likely reverse. We have again reviewed the record before us with a view of ascertaining whether the facts raised in our minds any serious doubt of the correctness of the trial court's action in overruling the motion for new trial, but are unable to bring ourselves to a different view from that entertained when we wrote the original opinion.
Finding no error calling for a reversal of this case, the motion for rehearing will be overruled.
Overruled.
ON SECOND MOTION FOR REHEARING.