
    HASH v. STATE.
    (No. 10196.)
    (Court of Criminal Appeals of Texas.
    June 16, 1926.
    Rehearing Denied Oct. 20, 1926.)
    1. Criminal law ©=»I099(6).
    Statement of facts filed more than 90 days after notice of appeal was too late for consideration, under Code Or. Proc. 1925, art. 760, subd. 5.
    2. Criminal law <©=>! 166'/2(6) — Jury <§=» 131(7).
    Where jurors who stated that they had formed opinion were challenged by state, refusal of defendant’s request to examine them was error, but not reversible, without showing of prejudice or that defendant exhausted peremptory challenges.
    3. Criminal law ©=>l 166'/2 (7).
    Improper exclusion of qualified juror is not sufficient grounds for reversal without showing of injury to accused.
    4.o Criminal law 115(2).
    Unless bill of exceptions shows one or more of jurors was objectionable, error in overruling defendant's challenge for cause will not be reviewed on appeal, although he exhausted peremptory challenges.
    Commissioners’ Decision.
    Appeal from District Court, Shackelford County; W. R. My, Judge.
    Henry Hash was convicted of the sale of intoxicating liquor, and he appeals.
    Affirmed.
    L. H. Welch, of Breckenridge, for appellant
    
      Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for tbe State.
   BERRY, J.

Tbe offense is tbe unlawful sale of intoxicating liquor, and tbe punishment is one year in tbe penitentiary.

Tbe state suggest tbat tbe statement of facts .was filed too late to be considered. Tbe record discloses tbat tbe motion for a new trial was overruled and tbe notice of appeal given on tbe 9th day of December, A. D. 1925, and tbat tbe statement of facts was not filed in tbe court below until tbe 19tb day of March, 1926. Under subdivision 5, art. 760, of tbe 1925 revision of tbe Code of Criminal Procedure, a statement of facts filed more than 90 days after tbe notice of appeal is given cannot be considered by this court. Under tbe terms of this statute, tbe statement of facts will not be considered.

In tbe absence of a statement of facts, bill of exceptions No. 1 is tbe only one tbat presents matters tbat could present reversible error. This bill complains at tbe court’s action in sustaining tbe state’s challenge for cause to certain jurors. Tbe bill shows tbat tbe state asked tbe jurors in a body if they bad formed an opinion as to tbe guilt or innocence of the defendant, and from what they bad beard might such opinion influence their verdict if taken as a juror in the case, and tbat some of such jurors answered, “Yes,” and the district attorney then challenged said jurors for cause, and said challenge for cause was sustained.

We have many times suggested to trial courts tbe propriety of allowing to appellant’s counsel latitude in tbe examination of jurors, in order tbat tbe right of a peremptory challenge may bé properly exercised. We think it also true tbat considerable latitude should be allowed to enable tbe party on trial to determine tbe correctness of a state’s challenge for cause. In tbe instant ease we do not think tbe trial court should have refused appellant’s request to examine tbe jurors. A few brief moments would have sufficed to have eliminated tbe question from this case, and certainly no barm could have been done tbe state in permitting counsel for tbe appellant to satisfy bimself as to tbe qualifieátions of tbe jurors challenged. It does not follow, however, tbat because we think tbe court should have permitted counsel to have interrogated these jurors tbat his failure to do so constitutes reversible error. Tbe bill of exceptions presenting tbe matter does not show, or attempt to show, tbat any objectionable juror was taken on the case, and fails to show or suggest tbat any injury was done to tbe appellant by reason of tbe court’s ruling, and fails to show tbat appellant exhausted bis peremptory challenges. Tbe mere fact tbat a qualified juror may be improperly excluded by tbe court is not within itself sufficient grounds for reversal of the case. Tbe bill of exceptions must go further and show tbat the appellant suffered some injury by reason of tbe court’s incorrect ruling. It has been frequently held, where an appellant’s challenge has been overruled, tbat, unless tbe bill of exceptions shows tbat one or more of tbe jurors who tried tbe .case was objectionable, tbe error in overruling the challenge for cause by tbe court will not be revised on appeal, although appellant exhausted bis peremptory challenges. Myers v. State, 7 Tex. App. 653; Ellis v. State, 69 Tex. Cr. R. 468, 154 S. W. 1012. Also see section 543, Branch’s Ann. P. C., for collation of many authorities on this question.

Finding no error in tbe record, tbe judgment is in all things affirmed.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court.

On Motion for Rehearing.

MORROW, P. J.

We have re-examined tbe record in tbe light of tbe appellant’s motion for rehearing, and perceive no reason for a change of tbe view expressed in tbe original bearing.

Tbe motion is overruled. 
      ^^>For other cases see same topic and KEY-NUMBER in all Key-Numbergd Digests and Indexes
     