
    MACKEY et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1912.
    On Motion for Rehearing, Dec. 18, 1912.)
    1. Jury (§ 29) — Right of Trial by Jury— Waiver — Criminal Cases.
    The statute which provides that defendant in a misdemeanor case may waive a jury altogether carries with it the further right to agree to a trial by a jury composed of less than six men.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 197-203; Dec. Dig. § 29.]
    2. Jury (§ 29) — Numbert—Objection—Waiver.
    Where defendants, on trial for a misdemeanor, agreed to try the case before a jury of five, which was done without objection pending the trial, an objection by themselves; after conviction, that they were tried by a jury of five men only, was too late.
    [Ed. Note. — For other eases, see Jury, Cent. Dig. §§ 197-203; Dec. Dig. § 29.]
    3. Criminal Law (§ 871) — Trial—Verdict.
    The verdict of the jury does not have to be signed by the foreman or any others of the jury, even in a felony case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2079-2081; Dec. Dig. § 871.]
    4. Criminal Law (§ 1090) — Appeal—Necessity of Exceptions.
    Unless defendants, in a misdemeanor case, take a bill of exceptions to the admission of evidence, and so preserve the point, the question of its admissibility cannot be held reversible error on appeal.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Adultery (§ 11) — Trial — Evidence— Identity of Parties.
    In a prosecution for adultery, where the state necessarily depended somewhat 'upon circumstantial evidence, evidence tending to show that persons seen by witness under circumstances indicating the offense were the defendants was admissible as a circumstance bearing upon the identity of the parties.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 20-23; Dee. Dig. § 11.]
    Appeal from Taylor County Court; Thomas A. Bledsoe, Judge.
    J. P. Mackey and Minnie Grice were convicted of adultery, and they appeal.
    Affirmed.
    M. W. Shelley, Jr., of Abilene, for appellants. 'C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellants were jointly indicted for adultery. They were tried together jointly, and in the trial represented by the same attorney. Each was convicted, Mackey fined $325 and Grice $100. They both appealed, each entering into a recognizance separately.

The record shows that in the organization of the jury, when both sides got through with their challenges, only five jurors were left. Thereupon both sides agreed in open court, both appellants being present, to try the case before a jury of five, which was done. No objection was made by the appellants, or either of them, by their attorney, or any other way, pending the trial. After the verdict of conviction, on motion for .new trial, for the first time appellants claim that the case was tried before a jury of five men only, instead of six, and that they personally did not agree to this at the time. The verdict, as rendered, was signed by one man as foreman, and not by the other four. We think the record clearly shows that each of the appellants did agree to try the case before a jury of five men; but, whether they did or not, they knew all the time during the trial and until after its conclusion that they were being tried by a jury of five men, and made no objection thereto. The charge against them was a misdemeanor. Our statute provides that an appellant in a misdemeanor case can waive a jury altogether. This would carry with it the further right to agree to a trial by a jury composed of less than six men. Stell v. State, 14 Tex. App. 59. And it was too late for appellants to make said objection to wait till after the verdict of the jury before making any complaint. West v. State, 54 Tex. Cr. R. 597, 114 S. W. 142; Munson v. State, 34 Tex. Cr. R. 498, 31 S. W. 387; C. C. P. art 938.

The verdict of the jury does not have to be signed by the foreman or any other dr others of the jury, even in a felony case. Petty v. State, 59 Tex. Cr. R. 586, 129 S. W. 615.

By several bills appellants complain that the court admitted certain admissions and statements by each of the parties when the other was not present, and complain that the court did not charge that such testimony should be considered only against the one so making such statements or admissions, and omitted to charge that it should not be considered against the other. As the evidence on the trial of both persons was clearly admissible in the case, it was the duty of the respective appellants, if they desired it, to request written charges limiting the consideration of such evidence to the party making such statement or admission. And, if such charge were refused, it was his duty to take a bill of exceptions thereto, and thus preserve his point. It is only when such course is pursued that this court can consider any such question on appeal in a misdemeanor case. This clearly not having been done does not present reversible error. This has always been the established law of this state, and decided so many times that it is unnecessary to collate or cite the authorities; but see Giles v. State, 148 S. W. 320; Perkins v. State, 144 S. W. 244; Golden v. State, 146 S. W. 946; Lutrall v. State, 142 S. W. 589; Melear v. State, 145 S. W. 354. This applies also to appellants’ complaint of the refusal of the court to give their special charge.

The state, being under the necessity of securing a conviction somewhat upon circumstantial evidence, and the court having given a correct charge on that subject, did not commit any error in admitting the testimony of Tom Newman as complained by appellant, as his testimony was admissible as a circumstance, among others, tending to show that the parties he saw were the appellants, and under such circumstances as clearly showed they had sexual intercourse on that occasion. Neither did the court err in permitting the witness Horace Holt, a boy 13 years of age, to testify, as the bill does not show that he was incompetent so to do. Neither does the bill to the objection of the testimony of the deputy sheriff show any error. Nor that of the sheriff to the fact that appellant Minnie Grice told him that she was 15 years old.

We have considered all of appellants’ assignments and none of them show any reversible error.

The only other question raised is appellants’ contention that the evidence is insufficient to justify the verdict. We have carefully read the statement of facts, and in our opinion the evidence was sufficient to authorize the jury to convict the appellants. It shows such a state of fact extending over such a period of time sufficient to convince the jury, as it did, beyond a reasonable doubt, that the sexual intercourse between the appellants was habitual. She was an unmarried girl 15 years old. Appellant Mackey was a married man. It is unnecessary to detail the evidence.

The judgment is affirmed.

On Motion for Rehearing.

Appellant in his motion for rehearing Complains that we did not consider nor pass upon his bill of exception, wherein he objected to the county attorney testifying to what Minnie Grice, one of the appellants, testified before the grand jury, claiming that what was testified before the grand jury was secret and could not be disclosed, and refers us only to the case of Gutgesell v. State, 43 S. W. 1016.

He is mistaken in claiming that we did not consider nor pass on this question. We stated in the opinion: “We have considered all of appellant’s assignments, and none of them 'show any reversible error.” The Gut-gesell Case, referred to and relied upon by appellant, has been so many times expressly overruled, and conceded to be by so many decisions, we thought it altogether unnecessary to say anything specially about his bill. The question has been so thoroughly considered and the authorities collated in .'several cases, ‘and decided against appellant, we deem, it unnecessary to again discuss the question. Wisdom v. State, 42 Tex. Cr. R. 584, 61 S. W. 926; Grimsinger v. State, 44 Tex. Cr. R. 18, 26, 29, 69 S. W. 583; Wooley v. State, 64 S. W. 1055; Pierce v. State, 54 Tex. Cr. R. 425, 113 S. W. 148; Giles v. State, 43 Tex. Cr. R. 563, 67 S. W. 411; Smith v. State, 48 Tex. Cr. R. 510, 90 S. W. 37.

The motion for rehearing is overruled.  