Appellant thinks we may have overlooked a recital in his bill of exception No. 3 to the effect that he had exhausted his peremptory challenges. It was not overlooked, but considered in connection with the court's explanation appended to the bill it cannot be determined with certainty whether the two additional challenges allowed by the court were available to appellant when the matters complained of in bill of exception No. 3 arose. If the two additional challenges had been exhausted we see no reason whatever for the court's explanation. *Page 345
Appellant renews his insistence that error is shown by bills four, five and six, his position being that the excluded evidence was admissible as tending to show bias in favor of deceased on the part of state's witnesses Zeddie Jones and Sam Jones. Appellant killed one Oliver at Jim Guy's house in July, 1924, at which time Sam Jones was working for and living with Jim Guy and his wife Zeddie. About a year after the killing Zeddie left home with Sam Jones. She procured a divorce and married Sam. It appears from the bills of exception mentioned that appellant sought to prove facts which he claims would show that at the time of the killing Sam and Zeddie were having improper sexual relations with each other and knew that deceased and appellant's wife were meeting at Zeddie's house for the purpose of indulging in like conduct, and therefore appellant concludes that Sam and Zeddie would be biased in favor of deceased. It is impracticable to set out all the excluded evidence of which appellant complains, but it may be questioned whether such evidence if admitted would have shown that Zeddie and Sam were having adulterous relations at the time of the killing. Recognizing the principle that the motives which operate upon the mind of a witness can never be regarded as immaterial or collateral (Branch's Ann. Tex. P. C., Sec. 163), yet we cannot agree that the facts of the present case, or the matters recited in the bills of exception now under discussion, call for the application of such principle. Crist v. State, 21 Tex.Crim. App. 361, Sexton v. State, 48 Tex. Crim. 497, 88 S.W. 348, to which we are referred by appellant reveal that in each instance the witness claimed to have been biased was shown to have direct relations with either the defendant or the injured party. This is not true in the present case.
The motion for rehearing is overruled.
Overruled.