
    GUERRA v. STATE.
    (No. 4290.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1916.)
    1. Criminal Law <@=>1099(5) — Appeal — Statement oe Fact — Filing after Adjournment.
    The Court of Criminal Appeals cannot consider a purported statement of facts, filed, not in term time, but weeks after the trial court had adjourned.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. § 2876; Dec. Dig. <@=>1099(5).]
    2. Criminal Law <@=>1144(18) — Appeal — Presumptions Favoring Court Below— Motion for New Trial.
    The Court of Criminal Appeals must presume, where evidence heard by the trial court on defendant’s motion for new trial is not brought to the Court of Appeals properly, that the facts heard on the motion sustain the trial court’s action.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3086; Dec. Dig. <@=> 1144(18).]
    3. Criminal Law <@=>923(1) — New Trial — Incompetency of Juror.
    New trial should not be granted for incompetency of one of the jurors by whom the case was tried, when it is not shown that the incompetency was not known, when the juror was accepted or that it could not have been known by proper inquiry.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2225; Dec. Dig. <@=>923(1).]
    4. Criminal Law <@=>923(1) — New Trial-Disqualification of Juror — Injury.
    Defendant, convicted of crime and seeking new trial for incompetency of a juror, must show that injury resulted to him by reason of the juror’s claimed disqualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2225; Dec. Dig. <@=>923(l).]
    ■ Appeal'from District Court, Starr County; V. W. Taylor, Judge.
    
      Eusebio Guerra was convicted of seduction, and be appeals.
    Judgment affirmed.
    R. Oosterveen, of Riogrande, and Canales & Dancy, of Brownsville, for appellant. C. C. McDonald, Asst. Atty. Gen., for tbe State.
   PRENDERGAST, P. J.

Appellant was convicted of seduction, and assessed tbe lowest punishment.

Tbe sole question in tbe case is whether tbe court should have granted him a new trial because, after tbe trial, in a motion for new trial, one of the jurors1 was alleged to be under 21 years of age. Tbe record shows that tbe court beard evidence on this question in passing upon tbe motion for new trial. There is, at tbe end of tbe statement of the facts herein on tbe trial of tbe case, what purports to be tbe testimony beard by the court on this motion. It was filed, not in term time, but weeks after tbe court had adjourned. Under such circumstances the uniform holding of this court in a long line of decisions is that this court cannot consider such a purported statement of facts. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State, 52 Tex. Cr. R. 59, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 550, 117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 615, 68 S. W. 512; Williams v. State, 56 Tex. Cr. R. 225, 120 S. W. 421; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 268; Tarleton v. State, 62 S. W. 748; Knight v. State, 66 Tex. Cr. R. 335, 144 S. W. 968; Bailey v. State, 65 Tex. Cr. R. 1, 144 S. W. 996. See, also, Jordan v. State, 10 Tex. 479; Sharp v. State, 6 Tex. App. 650; Graham v. State, 73 Tex. Cr. R. 34, 163 S. W. 726; Ethridge v. State, 74 Tex. Cr. R. 635, 169 S. W. 1152; Sorrell v. State, 186 S. W. 338; and a large number of other cases unnecessary to collate. This court must presume, and always does, that where such evidence is not brought to this court properly, the facts1 heard on the motion sustain the court’s action.

Further, the rule is, as stated by the Supreme Court in Roseborough v. State, 43 Tex. 570, that a new trial should not be granted for the incompetency of one of the jurors by whom the case was tried, when it is not shown that the incompetency was not known when the juror was accepted, or that it could not have been known by proper inquiry. Trueblood v. State, 1 Tex. App. 650; O’Mealy v. State, 1 Tex. App. 180; Brill v. State, 1 Tex. App. 572; 2 Gra. & Wat. on New Trial, 764; 6 Crim. L. Mag. 334. And, as added by' these authorities to the rule above stated, an appellant must show injury has resulted to him by reason of the claimed disqualification of the juror.

Notwithstanding we cannot properly consider the purported evidence heard by the trial judge on the motion for a new trial, yet we have read the said testimony at the end of the statement of facts, the juror who was claimed to be under age testified that he lived in the town, which was the county seat of the county where the trial was had, and was a school-teacher, and had taught school therein two years; that he had known one of appellant's attorneys, who, it seems, also lived in said town, for seven years and had gone to school with him; and he further swore that he knew about the age of this attorney, and that this attorney probably knew about his age. Neither this attorney nor any of appellant’s other attorneys, nor did appellant himself, testify that they did not know appellant’s age at the time they took him on the jury, and the record discloses that he was not asked his1 age by appellant, or any of his attorneys, at the time he was taken on the jury, the juror stating, however, that he did not hear the question propounded by the court, asking whether or not he was a qualified voter and juror. No intimation is shown in the record that any injury resulted to appellant by reason of his taking said juror on the jury, further than the mere fact that they claimed that he was not qualified as a juror because of his age. So that in any contingency the court’s action in refusing a new trial was correct. .

The judgment is affirmed.

HARPER, J., absent.  