In a motion for rehearing showing research and ability, the county attorney insists that in reversing the case, this court was in error. *Page 632
In his motion, the precedents to which reference is made in the original opinion are discussed at some length. Among them are Caton v. State, 147 S.W. Rep. 590; Bartlett v. State, 200 S.W. Rep. 859; Reich v. State, 251 S.W. Rep. 1072; Barnes v. State, 88 S.W. Rep. 806; Gilmore v. State, 38 S.W. Rep. 706; Kerley v. State, 230 S.W. Rep. 163. He also refers to Davis v. State, 19 Tex.Crim. App. 201; King v. State, 54 S.W. Rep. 245. In his analysis of them, State's counsel has taken no note of distinction between the procedure with reference to a peremptory challenge and a challenge for cause. To prepare himself for the intelligent exercise of the peremptory challenges allowed him by statute, one accused of crime has the right, through his counsel, to direct to the veniremen appropriate questions. See Vernon's Tex. C. C. P., Art. 690; Belcher v. State, 96 Tex.Crim. Rep., and precedents cited therein. He has such right also when his questions are framed with the view of challenging for cause. In each instance, it is within the province of the presiding judge to limit and control the examination; and in so doing, his discretion is broad, but does not embrace the right to deny the privilege of having counsel examine the veniremen. When the effort is to lay a predicate for challenge for cause, the relevancy and materiality of the question propounded and the answer sought is important, in order that the trial court may intelligently rule, and the appellant court review. In ascertaining whether a peremptory challenge is to be used, the inquiry is intended to elicit information upon which the accused or his counsel may determine whether the privilege of arbitrarily excusing the juror shall be exercised. These principles are stated in the cases collated in Belcher v. State, supra; Kerley v. State, supra, also in Reich v. State, 94 Tex.Crim. Rep., and cases therein collated.
As shown by the present record, the accused was denied the right of propounding questions to the proposed jurors in order to obtain information upon which he might intelligently exercise his peremptory challenge. In qualifying the bill, the court seems to justify his action upon the fact that appellant's counsel had abused the privilege with reference to those veniremen to whom he directed questions by extending his examination too far. As stated above, the court had the right to control the examination and keep it within proper limits; and from the qualification, he might *Page 633 well have exercised this privilege with reference to the examination of such of the jurors as counsel for appellant was permitted to examine; but the fact that appellant had been prolix in the examination allowed would not operate as a waiver of the right of counsel for the accused to examine those to whom he had directed no questions.
Believing that the proper disposition of the case was made on the original hearing, the motion for rehearing is overruled.
Overruled.