
    HOOPER v. STATE.
    (No. 9055.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.)
    1. Criminal law <§=3633(2) — Refusal to grant accused’s request not to have read to jury on second trial second count in indictment, under first count of which conviction was theretofore had and subsequently reversed, held not error, in absence of showing of injury.
    Refusal to grant accused’s request not to have read to jury on second trial second count in indictment, under first count of which conviction was theretofore had and subsequently reversed, held, not error, in absence of showing of injury.
    2. Criminal law <&wkey;>11661/2(6) — Refusal of motion to retire from courtroom unexamined ju- , rors held not reversible error, in absence of showing examination of other jurors was. hurtful.
    Refusal of motion to retire from courtroom unexamined jurors, on the ground that questions would be asked of a character which might affect" jurors not yet examined, held not reversible error, in absence of showing exami¡nation of other jurors in their presence was hurtful.
    3. Jury <&wkey;97(4) — Overruling challenge of juror for prejudice held “reversible error.”
    Overruling a challenge of juror for prejudice, which he expressed, but which in response to question of trial judge he in effect said he could eliminate as a juror, held reversible error under Code Or. Proc. 1911, art. 692, subd. 12; subdivision 13, pursuant to which trial court questioned juror, relating to opinion entertained by juror and not to his prejudice.
    4. Criminal law <&wkey;4!9, 420(11) — Reception in evidence of incriminating statement, made by wife to accused in private conversation after arrest, and overheard by officer held clearly erroneous.
    Reception in evidence of incriminating statement, made by wife to accused in private conversation after arrest, and overheard by officer, held clearly erroneous.
    5. Witnesses <3=^405(2)— Reception of testimony held erroneous as impeachment on immaterial matter.
    In prosecution for possessing intoxicating liquor for purposes of sale, where accused testified that in the private conversation had with his wife after arrest, and which witness officer overheard, accused and his wife discussed a sale of some pecans, reception of officer’s testimony that conversation did not relate to subject stated by accused held erroneous, as being an impeachment upon an immaterial matter.
    6. Criminal law <&wkey;668 — Denial of accused’s privilege to state to jury, at close of case, what he expects to rely upon for defense, is error.
    Denial of accused’s privilege, when claimed, to state to jury, at close of case, what he expects to rely upon for a defense, is error, in view of Code Or. Proc. 1911, art. 717.
    . Appeal from District Court, Bastrop County; R. J. Alexander, Judge.
    Opie Hooper was convicted of possessing intoxicating liquor for purposes of sale, and he appeals.
    Reversed and reminded.
    R. A. Brooks, of Bastrop, and J. F. Hair, of San Antonio, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’si Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Bastrop county of possessing intoxicating liquor for purposes of sale, and- his punishment fixed at one year in the penitentiary.

So many careless inaccuracies appear in the preparation of this transcript as to cause this court much delay and some doubt as to whether a new one should not be ordered. If the words misspelled and misplaced in the transcript appeared in the original, many of the proceedings were erroneous. If trial courts would more earnestly endeavor to oj> viate grounds of objection urged by appellants, which could not injure the cause of the state, and probably do not injure that of the accused, but are not material to the maintenance of the prosecution, it would cut down the length of records and save the presentation of so-called errors.

In the instant case it appears from the record that at a former time appellant was convicted upon the first count of an indictment containing two counts, his case was appealed and reversed. When called for trial at the time the present conviction was had, appellant objected to the presentation and reading pf the second count to the jury, inT sisting that it might have some hurtful effect upon them. While we would not be inclined to reverse a case for the refusal to comply with this request, unless some injury was shown, still we can see no reason why such a request should not be complied with. It is also shown that during the examination of the jury panel a request was made of the trial court that the jurors not yet examined be retired from the courtroom, inasmuch as many questions would be asked of a character that might affect the jurors not yet examined. The motion of the appellant in this regard stated that there was plenty of room in the courthouse to which the remainder of the jury could be retired during such examination. Unless it was shown that the examination was hurtful, it would be difficult for this court to conclude that the refusal of such a motion was reversible error, but we can see no good reason for its refusal.

By a bill of exceptions, it is shown that, after the peremptory challenges of the accused had been exhausted, a juror was examined who stated that he had a prejudice against' persons 'being in possession of whisky save upon the prescription of a doctor. He reiterated this proposition several times, and said in one instance that, if a person was shown to be in possession 'of whisky, he would require him to prove his innocence, and that he,did not have it for purposes of sale. To the district attorney upon his examination, contradictory answers were made. The bill of exceptions thereupon shows that the court propounded to the juror the following question:

“Notwithstanding that prejudice against a man for having whisky in his house, you could go into the jury box and discharge that prejudice from your mind and try thé case according to the evidence you heard here in the courthouse and according to the law the court give you in charge, and render a fair and impartial verdict?”

To this the juror said:

“I certainly would give him a fair trial and everything in justice to him.”

Thereupon the court overruled appellant’s challenge for cause, and the juror was permitted to sit on the trial of this case. The twelfth subdivision of Article 692 of our G. O. P. provides that one of the grounds of challenge for cause to a juror is that he has a bias, or prejudice in favor of or against the' defendant. This is quite different from the thirteenth subdivision of said article, which provides as to cases where a juror has established in his mind a conclusion as to the •guilt or innocence of the defendant such as would influence his action in finding a verdict. , When a juror seems disqualified under the thirteenth subdivision, it is always permissible to ask him if he can lay aside such opinion, and if, after having laid it aside, he can give the accused a fair and impartial trial. There is a fundamental distinction between prejudice on the part of a juror and the entertaining of an opinion on his part. When it appears that the feeling had by the proposed juror is really one of prejudice, and that it is directed toward the accused, it is not ordinarily deemed possible for such a juror to be qualified by stating that he can ■lay aside such prejudice, etc. It is easily possible for one who entertains a deep-seated prejudice to believe -himself able to lay it aside, but human experience teaches the contrary. Many decisions will be found collated on pages 373, 374, 375 of Vernon’s Annotated O. 0. P., bearing on this subject. We are forced to conclude the action of the learned trial judge in overruling the challenge to this juror as unwarranted.

By another bill of exceptions complaint is made of the fact that, after being arrested, appellant and his wife went into a room adjacent to that occupied by the officer, and that he there overheard them in conversation. He was permitted to testify to a strongly criminating statement made by the wife to her husband. This was clearly erroneous. It could not be held competent under the rule that the accused is called on to answer a criminating statement when made in his presence. In this case the husband and wife were having a private conversation, and there was nothing in the situation to call upon the accused to enter a denial to what was said by his wife. I-Ier statement was hearsay, and not made under such circumstances as to be binding upon appellant.

While on the witness stand, appellant testified, upon cross-examination, that while he and his wife were engaged in this private conversation they discussed the sale of some pecans and how much they had brought. The state was permitted to prove by the officer that he overheard the conversation between appellant and his wife in the adjoining room, and that they said nothing about the sale of any pecans or how much they brought. This was objected to as being an attempted impeachment upon an immaterial matter. We think the objection should have been sustained. Whether the pecans were sold, or how much they brought, was in no way material or pertinent to the issue as to the possession of intoxicating liquor. Such proof might have the effect of convincing the jury that appellant had lied, but the matter is not material, and its admission was erroneous.

There are bills of exception with lengthy explanations complaining of the refusal of the court to permit appellant, at the close •of the state’s case, to make to the jury a statement of what he expected to rely upon for his defense. It is provided by article 717 of our C. C. P. that counsel for the defense may state the nature of the defenses relied upon and what facts are expected to be proved in their support. A reasonable exercise of this privilege should not be denied. It is easy to understand how it may be abused, and it is the right of the trial court to control counsel and to see that no abuse of this right is exercised. However, it should not be denied when claimed.

There are many other complaints that appear unnecessary to put in this record. The labors of this court are very heavy, and for a man 40 years old to file an application for suspended sentence in a case such as this, when the right to same is clearly denied him by statute, and this court has so often upheld the law, and also to file attacks upon the statute under, which this prosecution is had, based upon grounds considered by this court-in many, other cases, and held adversely to the positions taken, but incumber the record and take the time of this court, and should not be indulged in.

For the errors above mentioned, the judgment will be reversed, and the cause remanded. 
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