
    WORD v. STATE.
    (No. 3781.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Criminal Daw <&wkey;589 — Continuance — Grounds.
    Denial of continuance was not erroneous where all the witnesses were present, and accused was not deprived of any testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1315, 1319; Dec. Dig. &wkey; 589.]
    2. Criminal Daw <&wkey;925 — New Trial — Grounds — Misconduct of Jurors.
    That the jurors during the trial discussed accused’s conduct in walking across the courtroom in an awkward, uncouth manner during the trial, and in laughing and smiling at jurors in such a way as to call forth a discussion bj the jurors, was not ground for new trial in the absence of any showing that accused was not guilty of the conduct commented on by the jurors.
    (Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2238-2247, 2250; Dec. Dig. <@=925.]
    3. Criminal Law <&wkey;956 — New Trial — Grounds — Misconduct of Jurors.
    That a juror, after the conviction of accused, stated to his counsel that half of the jurors said that, but for facts injected into the case as to the shooting by accused of a third person, accused would have been acquitted, unaccompanied by any affidavit of accused’s counsel or of the juror, did not justify granting a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2273-2391; Dec. Dig. &wkey; 956.]
    4. Criminal Law &wkey;>llll — Bill of Exceptions — Bystanders’ Bill.
    Where a bill of exceptions as qualified by the court and a bystander’s bill are filed, the court must consider the questions raised by the bystander’s bill.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S94-2896; Dec. Dig. &wkey;^ 1111.]
    5. Witnesses <&wkey;376 — Cross-Examination —Direct Examination.
    Where a state’s witness testified that accused committed the crime charged, and on cross-examination accused sought to show that the witness was taking an active interest in the case, it was not reversible error for the court to permit the state on redirect examination to show that the witness was interested in the case because accused had shot the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 836-839, 841, 843; Dec. Dig. <&wkey;>376.]
    6. Criminal Law <&wkey;ll66% — Remarks of Presiding Judge.
    AVhere the court, in overruling an objection to a question asked a witness, stated that the evidence to be elicited was admissible to show motive of the witness, but on the request of accused directed the jury not to consider either the question or the answer, the remark of the court was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114 — 3123; Dec. Dig. <&wkey;> 11661/2.]
    Appeal from District Court, Anderson County; John S. Prince, Judge.
    Hugh Word was convicted of murder, and he appeals.
    Affirmed.
    J. E. Rose, of Palestine, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was .convicted of assault to murder, and his punishment assessed at five years’ confinement in the penitentiary.

Appellant contends that the court should have continued the cause for the following reasons: Appellant was in jail, and had two criminal charges against him. Appellant’s counsel states that in a conversation with the court and the district attorney the court had stated he would call the first-numbered case for trial, and if appellant was acquitted in that case, and would make bond in the second case, it could be continued. The court says that all that was said was:

“If appellant was not convicted in the first case, .and would make bond, he would not require so strict a showing, but, if no bond was made, he would not leave him in jail untried, unless a strict showing for continuance was made.”

Appellant was acquitted of the first offense on July 1st. On the 2d of July the court states: He called this case for trial in the morning. Appellant’s counsel not being present, he had him called, and sent men to search for him. Not being able to locate appellant’s counsel, he postponed the case until 2:30 in the afternoon. At that hour he again called the case for trial, and had the jurors take a seat in the jury box. That at this time appellant’s counsel came in with a bond and asked that the case be continued. That he declined to do so unless a showing was made. All witnesses being present, and appellant not contending that he was deprived of any testimony, the court did not err in not granting a continuance.

Appellant contends that the court should have granted a new trial because his counsel alleges that after the trial Mr. Ben D. Jackson, one of the jurors, stated in his presence and hearing that some of the jurors discussed the fact “that defendant would walk across the courtroom in a very awkward, uncouth manner during the progress of the trial; that he would laugh and smile at various members of the jury in such a way as to call forth a discussion of these facts.” There is no allegation that appellant was not guilty of such conduct, and if he was guilty of it, and the jurors commented on it, it would present no ground for a new trial.

Appellant’s counsel also says that Mr. Jackson told him “that half of the jury said that, but for the facts injected into the trial relative to the shooting of Ira Swanson, defendant would have been acquitted.” Appellant’s counsel does not attach his affidavit that such an occurrence took place, nor does he attach the affidavit of Mr. Jackson. As presented to us, we cannot say the court erred in the premises.

Appellant also has a bill in the record in which he complains Ira Swanson, a witness for the state, on redirect examination, was asked the following question: “Isn’t the reason that you are interested in this case is because that Hugh Word shot you four times because you were a witness against him in this trial?” Appellant says that before he could object the witness, replied, “Yesthat appellant did then and there object and except to such question and answer, when the court remarked: “I think it admissible to show motive.” The court says he made no such remark, and, as qualified by him, would certainly present no error, but appellant, while filing the bill as qualified, also filed a bystander’s bill, and the witnesses testify that the court did make the remark, and prove up the bill as presented by appellant; consequently we must consider it

The witness Ira Swanson was one of the witnesses for the state who testified that appellant shot Mattie Word, his former wife. In cross-examination of the witness appellant had sought to show that the witness was taking an active interest in the prosecution, and was therefore calculated to be biased in his testimony; and under such circumstances, if the proceedings took place, as contended in the bystander’s bill, it would present no reversible error.

However, we will add here that, in addition to this bystander’s bill, appellant, in the record, filed the stenographer’s report, and in it appears the following:

“State: Isn’t it because you are interested in this case is that this same negro shot you four times after he shot Mattie Word? Witness: Ans. Yes. Defendant: We ásk the court to instruct the jury not to consider either the question or the answer. Court: Yes; the jury will not consider either the question or the answer just put and answered by the witness.”

It is thus seen that the question and answer were properly excluded at the time, and if the court did make the remark, and yet, when appellant’s counsel requested the exclusion of the question and answer, promptly instructed the jury not to consider either, no error is shown.

After a careful consideration of each and every question presented by the record, we are of the opinion there is nothing presented that would justify a reversal of the case.

The judgment is affirmed. 
      <©r=>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     