
    RUMFIELD v. STATE.
    (No. 8034.)
    (Court of Criminal Appeals of Texas.
    March 5, 1924.
    Rehearing Denied Oct. 15, 1924.)
    1. Indictment and information @=196(6) — Defendant waived error in copy of indictment by proceeding to trial without objection.
    Defendant, charged with sale of liquor, waived irregularity in certified copy of indictment served on him, charging sale to have been made to “John Reeves” instead of “John Reece,” by proceeding to trial without calling court’s attention to the error.
    2. Criminal law @=>720(10') — Evidence held baT sis for prosecuting attorney’s reference in argument to jury to intimidation of state’s witnesses.
    In prosecution for sale of liquor, testimony of witness, who testified to having purchased liquor from defendant, that affidavit in which he denied having purchased such liquor from defendant was coerced from him, held basis for prosecuting attorney’s reference in argument to jury to intimidation of -witnesses.
    3. Criminal law @=>730(7) — Court’s admonition t to disregard prosecuting attorney’s statement cured error, if any.
    Prosecuting attorney’s reference in argument to jury to intimidation of state’s witnesses, if improper as not sustained by evidence, was cured by prompt action of court in directing jury to disregard it.
    4. Criminal law @=>956(9) — Defendant, having alleged prejudice of juror, had burden of so proving.
    Defendant having alleged, in motion for new trial, that a juror was prejudiced, had burden of so proving.
    5. Criminal law @=956(16) — Hearsay affidavits held insufficient to establish juror’s prejudice on motion for new trial.
    Affidavits that affiants had heard juror’s wife say that juror had made statements, claimed to show prejudice of juror, held insufficient showing of prejudice on motion for new trial, being hearsay.
    6. Criminal law <@=5956(1) — Fact cannot be established by hearsay affidavit.
    A fact cannot be established by hearsay affidavit, on motion for new trial.
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    H. A. Rumfield was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Lon A. Brooks, of Anson, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the sale of intoxicating liquor, with punishment assessed at confinement'in the penitentiary for one year.

The evidence supports the verdict and judgment. Indictment was returned January 17, 1922, and the cause continued at that term of court. The ease was then called for trial April 16, 1923; appellant being out on bond. He filed a motion stating that he had not been served with a copy of the indictment and had never waived his right to be furnished with one, whereupon the court ordered the clerk to make a certified copy of the indictment and cause it to be served upon appellant, which was done. The original indictment charged the sale to have been made to one “John Reece.’’ The purported copy, delivered to appellant under the foregoing motion, alleged the sale to have been made to “John Reeves.” The bill of exception bringing this matter forward for review nowhere states affirmatively that the attention of the learned trial judge was called to the discrepancy in the name of the purchaser after the copy of the indictment was delivered to appellant. The record makes it clear that when the court’s attention was called to the fact that no copy of the indictment had been furnished appellant he promptly undertook to comply with the constitutional and statutory provisions relative to the matter, and directed that a copy be made and delivered to appellant. If the discrepancy in the name was not called to the court’s attention, then he had a right to assume that the copy furnished was a true and correct copy, and, if appellant proceeded with the trial without further objection being made known to the court, we would hold that he waived the matter now complained about. It is clear from the opinion in Revill v. State, 87 Tex. Cr. R. 1, 218 S. W. 1044, and the authorities therein cited, that he might entirely waive the right to be furnished with a copy of the indictment. In connection with the motion requesting a copy of the indictment, appellant also requested a postponement of the trial for two days. After having a copy of the indictment made and delivered to appellant, the court overruled the motion, and the bill indicates that he was acting entirely upon the original motion, in the absence of ever having his attention called to the discrepancy in the name. That appellant was in no way surprised when Reece and not Reeves appeared as a witness against him is apparent from the discussion of the next assigned error.

After Reece had testified positively for the state as to the sale of the whisky by appellant to him, he was handed an affidavit which had theretofore been made by him in which he had denied the purchase of whis-ky from appellant. Much evidence was introduced relative to this affidavit; Reece, in his testimony, in one place states that appellant had been to see him a number of times relative to procuring it, and that at one time had a gun with .him and made some threats. This statement was sharply com-batted by both appellant and the witnesses who were present at the time the affidavit was made. During argument, the district attorney used the following language:

“Gentlemen of the jury, if defendants can go out in cases of this kind and intimidate the witnesses for the state and obtain from them' affidavits as were obtained in this ease, and then come into court and get juries to turn criminals loose on such affidavits, then I say to you that before the sun goes down this evening other defendants will go out and do likewise, and the state will be powerless to convict bootleggers in this county.”

Objection was lodged to the argument as being unauthorized and not warranted by the evidence and not a proper deduction from any evidence in the case. The learned trial judge seems to have taken this view of the matter and immediately instructed the jury orally not to consider the remarks of the district attorney for any purpose. No written instructions were requested relative to the matter. If any error was committed, we think it was against the state. While the weight of the testimony indicated that the affidavit referred to was -not coerced from the witness Reece, yet in our opinion his testimony furnished a basis for the argument of the district attorney. Whether we be correct in this view or not, the prompt action of the court in directing the jury not to regard the argument cured the error, if any.

As one ground of his motion for new trial appellant alleged that C. P. Amerson, who sat as a juror on the trial of his case, was not a fair juror, but was prejudiced to such án extent that the verdict should be set aside. He alleges that the juror said before leaving home:

“I am going over to Anson and get on the jury and send every man to the penitentiary that is shown to have anything to do with whisky.”

Having alleged this in his motion, the burden was upon appellant to establish it. He undertook to discharge the burden by attaching to his motion the affidavits of two people to the effect that they heard Mrs. Amerson say that her husband made the statement hereinbefore set out. A fact can no more be established by a hearsay affidavit than it could have been established by the same witnesses undertaking to give such hearsay testimony orally before the court upon the hearing of the motion. The court committed no error in overruling the motion upon the ground stated.

Finding no error in the record which would call for a reversal, the judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

Upon the demand of the appellant, the court instructed the clerk to furnish appellant with a copy of the indictment against him. The copy furnished was inaccurate. Doubtless if he had called the court’s attention to the discrepancy, a corrected copy would have been supplied. At all events, if the court had been informed of the error in making the copy of the indictment, it would have been incumbent upon it to cause a corrected copy to be made and delivered to the accused. So far as the record shows, the court did not know that his instructions to the clerk to furnish a copy of the indictment had been imperfectly complied with.

Knowing of the inaccuracy in the name of the copy furnished, appellant, having proceeded to trial without complaining of the copy, is not in a position to demand that the verdict be annulled.

The motion is overruled. 
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