
    WILSON v. STATE.
    (No. 11466.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    Rehearing Denied June 23, 1928.
    1. Jury <®=»l 10(1)— Refusal to set aside jury panel for'sheriffs' failure to make return on venire facias and improper excusing of some jurors held not available error, where 26 regular jurors were present and defendant did not request process for excused jurors (Rev. St. 1925, arts. 2117, 2118).
    Bill of exception to denial of motion to set aside jury panel on ground that sheriff made no return on venire facias directing him to summon jurors, .under Rev. St. 1925, arts. 2117, 2118, and that some jurors were improperly excused, showed no irregularity of which defendant .could complain, where 26 regularly drawn jurors were present when case was called for trial and defendant made no request for process to bring in jurbrs excused.
    2. Criminal law <S=o736(2) — Whether confession admitted in evidence was voluntary held for jury.'
    Question, raised after admission of confession, as to whether it was voluntary, was properly submitted to the jury.
    3.Criminal law <⅜=»1091(5) — Bill of exception not showing what witness’ excluded testimony would have been held defective.
    Bill of exception to exclusion of testimony of defendant’s father, in trial for theft, as to whether owner of stolen calf told witness that he had sold it to defendant, iheld defective in not showing what witness’ answer to question would have been.
    
      4. Witnesses <§=s>388(2) — 'Testimony that owner' told witness that he sold stolen calf to defendant held properly excluded as hearsay, in absence of predicate to impeach owner.
    In trial for theft, testimony of defendant’s father as to whether owner of stolen calf told witness that he had sold it to defendant held properly excluded as purely hearsay, where no predicate was laid to impeach owner on such point.
    Appeal from District Oourt, Shackelford County; M. S. Long, Judge.
    John, Wilson was convicted of theft, and he .appeals.
    Affirmed.
    J. Lee Cearley, of Cisco, and S. C. Coffee, of Albany, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of a calf alleged to have belonged to L. L. Em-berlin ; punishment being two years’ confinement in the penitentiary.

Appellant and his codefendant Ery (No. 11467, 7 S.W.(2d) 1089) were indicted and tried separately, but the records are identical. Some two weeks before the calf was alleged to have been stolen, a dance was in progress at Emberlin’s house, upon which occasion'both Wilson and Ery were present. Wilson made some inquiry about selling the calf-in question, in which conversation Em-berlin claims to have told them that he would sell the calf at some later time, but did not want to take it away from its mother then. Upon the occasion of taking the animal, Wilson and Fry, in company with one Whatley, had gone ostensibly on a fishing trip; about dark they left the creek where they had set out some hooks and drove 12 or 14 miles to Emberlin’s place, where they waited until the lights went out in the house, then took the-calf, killed and prepared it, for market. The next day they sold the hide, and were attempting toi dispose of the meat when they were apprehended. They told the officers they had raised the calf. The defense interposed by both Wilson and Fry was that they had a contract to purchase the calf from Em-berlin and took it under the claim of such contract of purchase. Such claim does not appear to have been very cogently supported, but the issue was properly presented.in the charge and the finding of the jury was against appellant. We deem it unnecessary to set out the facts in any detail.

On Monday when this case was called, at the request of the attorney representing appellant, and for his convenience alone, the case was set down for trial on a later day of the week. When the case was called at that time,- appellant moved to set aside the jury panel for the week; the motion apparently being based on the fact that the sheriff had made no return on the venire facias which directed him to summon the jurors. Another ground set out in the motion was that some of the jurors present were talesmen who had been summoned under the direction of the court, but this averment is in no way verified. Upon investigation of the motion, the following facts were disclosed: A regular jury commission had drawn 36 jurors for that week of court; the clerk in proper time had given the list to the sheriff in order that he might notify the jurors to be present (articles 2117 and 2118, R. C. S.); the sheriff had not made a regular return, if indeed under the provisions of the articles referred to he was required so to do. On Monday the jurors were called from the original list; some were excused upon grounds authorized by statute, others were excused for that particular day, but were present later in the week when this case was called for trial. If we understand the facts, they show that 26 of the regularly drawn jurors for that week were present for jury service at the time this case was called for trial. If appellant thought the court had abused his discretion in excusing any of the jurors, he made no request for process to have said jurors brought in. So far as this record shows, he may have secured a jury from the 26 regular jurors available. The bill presenting this matter shows no such irregularity of which appellant had just ’cause for complaint. The case of Irvin v. State, 57 Tex. Cr. R. 331, 123 S. W. 127, to which we are referred in appellant’s brief, has no application whatever. In the Irvin Case the jurors available were not drawn by jury commissioners* but the court had arbitrarily refused to appoint jury commissioners and had the jury summoned by the sheriff.

We perceive no error on the part of the court in admitting in evidence appellant’s confession. It is true after the confession was admitted appellant undertook to raise an issue that it was not voluntary. This question was properly submitted to the jury.

Appellant complains because the court declined to permit appellant’s father to answer whether Emberlin had told the witness that he (Emberlin) had sold the calf to the boys, meaning appellant and his code-fendant Ery. The bill is defective in omitting to show ’ what the witness’ answer would have been. If not defective in the particular mentioned, the ruling of the court was not erroneous. No predicate had been laid to impeach Emberlin upon the point, without which the evidence attempted to be introduced was purely hearsay.

The judgment is affirmed.

On Motion for Rehearing.

LATTTMORE, J.

Appellant renews in his motion practically each ot the matters complained of on the original presentation of this case, all of which -were considered and passed upon in said opinion. Each of these complaints has again been carefully examined and the conclusion reached that for us to again write upon them would be but a reiteration of what we have already said.

Being unable to agree that any error appears, the motion for rehearing will be overruled. 
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