We have again reviewed the record in the light of appellant's motion for rehearing, and are unable to agree that the contentions raised were not properly disposed of in our original opinion.
By Art. 616, Sec. 11, C.C.P. (applicable to capital cases), the fact that the juror has conscientious scruples in regard to the infliction of the punishment of death for crime is made ground for challenge. Such challenge may be made by the accused as well as by the State. See Taylor v. State,131 Tex. Crim. 350, 99 S.W.2d 609.
The State's right to such challenge could not be destroyed by the previous agreement of the District Attorney that appellant was entitled to bail. *Page 453
We also remain of the opinion that the testimony of other jurors as to their opinion that the juror Kolar was sane was admissible; that a fact issue as to his sanity was raised, and that the trial judge did not abuse his discretion in determining such question against appellant's contention and overruling his motion for new trial.
Appellant's motion for rehearing is overruled.
Opinion approved by the Court.