They have local option in Titus County, and appellant had a distillery in said county. In one end of his house was the distillery, and in the other a warehouse presided over by a storekeeper placed there by the United States government. The whisky was run into the storeroom, and after going through a refining process was placed by this storekeeper in casks. For each of these casks a certificate was issued to appellant, which certificate called for a cask of whisky corresponding to the number mentioned in the certificate. Upon presentation of this certificate, together with evidence of payment of United States internal revenue tax, the holder of the certificate would receive the cask of whisky. Louis Miller, the alleged purchaser, with Wigginton and several others bought one of these certificates from appellant, under the following circumstances: Miller desired to purchase two gallons of whisky. Appellant refused to sell him whisky under any sort of consideration, but it was finally agreed between them that if sufficient amount of money was gotten together to pay the United States revenue tax — which was $1.10 per gallon, the casks containing ten gallons of whisky — that he (appellant) would transfer, for the further sum paid of $14, a certificate which would call for the delivery of a ten-gallon cask of whisky, as soon as evidence of the payment of the United States tax was produced. Appellant Wigginton and others agreed to take the ten gallons, and to this end undertook to raise $25 — $11 to go to the United States government and $14 to appellant. Miller, the alleged purchaser, and Wigginton met appellant at his residence after supper. There was some trouble in raising the money, and Miller finally agreed to take two and one-half gallons of the whisky, and paid $6.25 to appellant on this nocturnal visit. Wigginton paid the remainder, less $2.50, and the next morning made up the $2.50 and delivered that to appellant. Money was sent to Dallas, the internal revenue tax paid, the receipt returned to the warehouseman, the certificate *Page 336 was transferred by appellant to the parties, and Wigginton secured the cask, carried it to an appointed place, where the whisky was divided between the purchasers, Millers receiving his two and one-half gallons. It is contended there is a variance between the allegations in the information and the evidence, to wit, that Miller was purchaser, and the proof; that is, the sale should have been alleged to all the parties purchasing, and not to one of them. Under the circumstances stated we are of the opinion there was no variance, and that Miller was the purchaser of the two and one-half gallons.
Error is assigned upon the action of the court impaneling the juror Wilhite. The bill of exceptions shows affirmatively that appellant had exhausted his challenges, and Wilhite sat on the jury over his objections, the court refusing to sustain his challenge for cause. The circumstances attending the examination of the juror were as follows: He was asked if from hearsay or otherwise he had formed an opinion as to the guilt or innocence of defendant, and answered that he had formed such opinion. He was then asked if that opinion was such as would require evidence to remove it. He answered this in the affirmative. He was then asked if he would go into the jury box with that opinion if he was selected on the jury, and he stated he would. On cross-examination by the State, he said he could give defendant a fair and impartial trial if he was selected on the jury. He was then asked if that opinion was such as would influence his action in rendering a verdict. He said it would not. On redirect examination he stated it would take evidence to remove the opinion that he had, and that the opinion was as to the guilt or innocence of the defendant. He was then asked if he did not vote the prohibition ticket at the recent election. He answered that he did. Cause for challenge was interposed and overruled. Appellant had exhausted his challenges, and the juror sat on the trial. The court did not err in refusing to set aside the juror. It is true he had formed an opinion; but the bill does not show whether this opinion was formed from hearsay or from talking with the witnesses. If it was from hearsay or reading newspaper reports, the mere fact that he had an opinion would not per se disqualify him. It must be such an opinion as would influence him in finding a verdict. In order to disqualify a juror on account of conclusion as to the guilt or innocence of defendant, as provided in subdivision 13 of article 673 of the Code of Criminal Procedure, "such conclusion must be established," and the ultimatum of the matter is, can the juror give a fair and impartial verdict upon the law and facts? If so, he is competent; if not, he is incompetent. To disqualify a juror on account of a conclusion in his mind as to the guilt or innocence of the accused, the conclusion must be such as is not only "established," but such "as will influence him in finding his verdict." In commenting upon this question, in Suit v. State, 30 Texas Crim. App., 519, the following language was used: "The juror does not disclose the facts that influenced him in forming his *Page 337 opinion. It is manifest he did not receive his information from the witnesses, because he did not talk with them about the case. He met defendant several times, but does not state whether he discussed the facts with him. If he did, the opinion may have been favorable to defendant. Upon this, however, the record is silent. The juror swore that he could render a fair and impartial verdict upon the law and the evidence. The mere fact that the juror has established in his mind a conclusion of guilt or innocence of the party on trial is not a sufficient cause for disqualification." In Adams v. State, 35 Tex.Crim. Rep., it was said: "That the answers of said jurors, in connection with the qualification of the court to the bill of exceptions, shows, that those of said jurors who had formed any opinion in the case had done so, not from having heard any witness state the facts, but from rumor and hearsay; and they further declare, that notwithstanding any opinion then entertained as to the guilt or innocence of appellant, they could give appellant a fair and impartial trial on the evidence in the case." See, also, Keaton v. State, 41 Tex.Crim. Rep.; Johnson v. State, 21 Texas Crim. App., 368; Kennedy v. State, 19 Texas Crim. App., 629; Post v. State, 10 Texas Crim. App., 591. The bill of exceptions in this case does not show from what sources the juror received his information upon which his conclusions were formed; but states that, notwithstanding said conclusion as to the guilt or innocence of defendant, he could give defendant a fair and impartial trial, and would do so if selected on the jury. We do not understand that because the juror may not change a pre-existing opinion until he hears something, would per se disqualify him. If so, then the fact that he had an opinion at all would disqualify him, because no rational mind could change an opinion without hearing something converse to that opinion, or having something brought to bear upon his mind changing that opinion. In other words, an opinion per se, is not a disqualification. If the juror can give defendant a fair and impartial trial, as required by the Constitution of this State, he is a qualified juror, and a pre-existing opinion that will not influence his action in returning a verdict is not a disqualification. So to hold would be placing a premium upon ignorance and a disqualification upon intelligence. In our opinion, the court did not err in holding that the juror was qualified. The judgment is affirmed.
Affirmed.