
    FERNANDEZ v. STATE.
    (No. 4671.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.)
    1. Criminal Law <©==>1166½ (8) — Review — Challen ge for Cause after Exhaustion of. Peremptory Challenges.
    If a cause for challenge is well taken, and defendant, having' exhausted his peremptory challenges, is forced to take the talesman as a juror, he is entitled to reversal; for peremptory challenges are given to be exercised by defendant independent of challenges for cause.
    2. Jury <®=j108 — Cause for Challenge — Statement o-f Juror — Punishment.
    Where a talesman, when tested as to his qualifications to sit as a juror in a prosecution for violating the local option law, stated positively that he would not under any circumstances accord accused the benefit of the suspended sentence law, the statement constituted a cause for challenge.
    
      3. Criminal Law ©=749 — Plea for Suspended Sentence — Determination by Jury.
    The law accords an accused the right to have a jury pass upon her plea ior suspended sentence when filed in proper time.
    Appeal from District Court, Atascosa County ; E. G. Chambliss, Judge.
    Julia Hernández was convicted of violating the local option law, and she appeals.
    Judgment reversed, and cause remanded.
    E. B. Hendricks, Asst. Átty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted for violating the local option law.

There are various exceptions to the ruling of the court with reference to the admission of testimony. The bills are rather indefinite, and, in view of the disposition of the case, are not discussed. Upon another trial these matters may not occur, and, if so, the bills of exception will be more explicit.

There is a bill of exception reserved which, in substance, shows that, when the jury was called to be impaneled and tested as to their qualifications in this particular case, two of the jurors answered positively that they would not, under any circumstances accord the accused the benefit of the suspended sentence law. These two jurors were challenged for cause. Appellant- exhausted her peremptory challenges, and one of the jurors, over her objection, sat on the jury. The court, on the face of the bill of exception, seems to have been under the impression that at the time these Causes for challenge were offered appellant had her peremptory challenges. This is not an answer to the question. If a cause for challenge is well taken, and the defendant exhausts his peremptory challenges and is forced to take such juror, he is entitled to reversal. Peremptory challenges are given to be exercised by the accused independent of challenges for cause.

We are of opinion that the court was in error, and further that it constituted a cause for' challenge. Appellant properly, and in due time, filed a plea for a suspended sentence. The law accords an accused the right to have a jury pass upon such plea, when filed in proper time. It is a matter of value for an accused to have a suspended sentence awarded if the jury should find against him on the merits of the case and convict. ,

The judgment is reversed, and the cause remanded. 
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