
    GARRETT v. STATE.
    (No. 7062.)
    (Court of Criminal Appeals of Texas.
    June 14, 1922.
    Rehearing Denied Oct. 11, 1922.)
    1. Criminal law <@==>961— On motion for new trial, juror’s incompetency held a question 6f fact.
    Where new trial is asked on allegation of a juror’s incompetency ascertained after trial, when the juror had on voir dire negatived the incompetency, an issue of fact for the trial court is raised.
    2. Criminal law @=ol092(9), 1099(5) — Evidence on questions of fact raised by motion for new trial must be perpetuated in bill of exceptions or statement of facts filed during term time.
    Where questions of fact are raised by motion for new trial, the evidence on such ground must-be perpetuated either in bill of exception or statement of facts filed during term time, regardless of extension of time by the trial court for such filing.
    3. Criminal law <S=I 144(16) — Presumption of legal conviction controls, where no statement of facts or bill of exceptions are filed.
    Where appellant presents no statement of facts and no bill of exceptions which the appellate court can consider, the prisumption of legality of the- conviction controls.
    On Motion for Rehearing.
    4. Jury ®=allG(ll) — Waiver of objection to juror obtains, though disqualification is discovered after trial and is not disputed.
    Where accused makes no examination of a juror on voir dire, his waiver of objection obtains after verdict, though the juror’s disqualification is discovered after trial and is not disputed.
    .Appeal from District Court, Gillespie County; J. H. McLean, Judge.
    
      Jesse Garrett was convicted of theft of property of more than $50 in value, and he appeals.
    Affirmed.
    E. J. Dalrymple and Wilburn Oatman, both of Elano, for appellant. •
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for theft of property of more than $50 -in value, with punishment of four years’ confinement in the penitentiary assessed.

No statement of facts accompanies the record, and appellant seeks a reversal of the judgment upon one issue alone. He complains in his motion for new trial that one of the jurors was related by marriage to the party from whom appellant is charged with having stolen the property; that upon inquiry .of said juror on his voir dire he answered that he was not so related; that appellant only discovered the existence of such relationship after the trial. This allegation necessarily raised an issue of fact to be determined by the trial court upon the hearing of the motion.

The bill of exceptions stating what the agreed evidence was upon the hearing was filed in the court below on May 3, 1922. The term of court at which the trial occurred adjourned March 4, 1922. Appellant was granted 60 days after adjournment of court in which to prepare and file bills of exception and statement of facts, but it is insisted by the Assistant Attorney General that the bill presenting the matter complained of should have been filed within term time, and cannot be considered by us, regardless of the extension of time by the court. In Salazar v. State, 88 Tex. Cr. R. 209, 225 S. W. 528, Judge Davidson, speaking for the court, says:

“The authorities are harmonious and uniform to the effect that, where questions of fact are raised by the motion for new trial, the evidence taken upon such grounds must be perpetuated either in bills of exception or statement of facts filed during the term; that such matters cannot be considered if filed in vacation.”

The following authorities support the proposition announced in the foregoing case. In some of them the point is made that a different rule obtains where the, matters are presented by bill of exception, instead of by statement of facts; but, wherever raised, it has been held that the same rule controls, regardless of how the matter is attempted to be brought forward, provided the motion for new trial raised an issue of fact. Wiley v. State, 78 Tex. Cr. R. 406, 181 S. W. 728; Lucas v. State, 69 Tex. Cr. R. 269, 155 S. W. 527; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 980; Bailey v. State, 05 Tex. Cr. R. 1, 144 S. W. 996; Johnson v. State, 71 Tex. Cr. R. 620, 160 S. W. 695; Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263; Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116. The contention of the Assistant Attorney General must be sustained.

There being no statement of facts, and no bill of exception which we can consider, the presumption as to the legality of the conviction controls, and the judgment of the trial court must be affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In his motion for rehearing appellant insists that we erred in holding that the trial court committed no error in refusing to grant him a new trial because of the alleged disqualification of the juror Baag. We disposed of this matter correctly, we think, in the original opinion on the ground that the bill of exceptions attempted to present matters of fact adduced before the court upon the hearing of the motion for new trial, and said hill of exceptions was not approved during term time.

In addition to said ground, the case might have been further decided upon the proposition that, if it be granted that said juror was disqualified, no examination was made of him by appellant on his voir dire. In such case this court has held, where the accused asks no questions, and makes no examination of the juror upon his voir dire, that he waives any such objection. In Templeton v. State (Tex. Cr. App.) 57 S. W. 831, the same ground of disqualification of the juror was urged as is here insisted upon; that is, that said juror was related to the injured party within the third degrde, and that the relationship was not known to the accused until after the trial. This court said in its opinion:

“If appellant accepted the juror with knowledge of such relationship, or if he accepted him without inquiring in regard thereto, he could not be heard to complain. The affidavits do not disclose that he made any effort to ascertain any relationship of the juror to the prosecuting witness. Bailing to make inquiry in reference to this matter, it is too late after verdict to go into the question in order to show relationship.”

A number of authorities are cited in support of this proposition.

The motion for rehearing will be overruled. 
      <S=3Por other oases see same tppic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     