
    SALAZAR v. STATE.
    (No. 5978.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1920.)
    1. Criminal law &wkey;>1090(16) — Rulings of court regarding jurors not reviewed in absence of bills of exceptions.
    Rulings of the trial court concerning an attack upon jurors who sat in the case, raised* by motion for new trial, cannot be reviewed in the absence of bills of exceptions reserved thereto.
    2. Criminal law <&wkey;l092(6), 1099(5) — Evidence of facts raised by motion for new trial must be in bill or statement filed during term.
    Where questions of fact are raised by a motion for new trial, the evidence taken upon such grounds must be perpetuated either in the bill of exceptions or in a statement of facts filed during the term, and such matters cannot be considered if filed in vacation.
    3. Criminal law i&wkey;>923(2) — No error in refusal to grant now trial on account of statement of juror.
    The court did not err in refusing to grant a new trial in a homicide case on account of a juror having stated that, if he was taken on the jury and the evidence showed that accused was guilty, he would break his neck.
    Appeal from District Court, Victoria County ; John M. Green, Judge.
    Candelario Salazar was convicted of murder, and appeals.
    Affirmed.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted or murder, his punishment being assessed at death.

The case is one of circumstantial evidence. In view of the testimony, we would not feel justified in reversing because the verdict is not sustained by the evidence. The circumstances are of a cogent nature and of sufficient strength, we think, to show that the verdict of the jury is supported by the evidence.

In the motion for new trial there is an attack made upon two or three of the jurors who sat in the case. There are no bills of exception reserved to the action of the court in this matter, and, further passing upon it, we call attention to the fact that even the grounds of the motion for new trial do not show that appellant exhausted his peremptory challenges, and there is nothing stated in the motion showing that he did so exhaust his peremptory challenges; but, in any event, these matters would he of no avail to appellant without bills of exception setting out the facts in connection with overruling his grounds of challenge, or whatever reasons may have suggested themselves as grounds of objection to the jurors.

It was urged in motion for new trial that another juror had placed himself as unfavorable to appellant in stating that if he was taken upon the jury he would break the Mexican’s neck. Testimony was taken upon this matter by the court; but the statement of facts bearing upon it was filed long after the adjournment of court, and therefore cannot be considered. The authorities are harmonious and uniform to the effect that, where questions of fact are raised by the motion for new trial, the evidence taken upon such grounds must be perpetuated either in bill of exceptions or in statement of facts filed during the term; that such matters cannot be considered if filed in vacation. We have looked, however, at the evidence in regard to this juror especially and are of opinion that the court was not in error in refusing to grant the new trial for that reason. The juror’s evidence is to the effect that he had the conversation and made the statement in part as set out, but his version of it is, in speaking of it, that he stated if the evidence showed that appellant was guilty he would break his neck, and that he was in the habit of talking that way about murder cases generally, and that it was well known even to the lawyers who practiced at the bar in Victoria. He states that he went upon the trial without prejudice against defendant, or without knowing anything about the facts, and that he had no prejudgment with reference to the case, but that he did state, and would continue to state, not only with reference to defendant but any defendant, that where the facts justified he would award the death penalty. The facts show a deliberate assassination of the deceased, and a very careful hiding of the body, and considerable ingenuity in covering up evidences of his connection with the killing. It might be entertaining to narrate the facts, but it would serve no practical purpose, outside of the fact that it might be entertaining reading. We think the evidence was sufficient to show that appellant was the guilty party, and there is some evidence winch leads to the conviction and may have induced the jury to believe it was done for the purpose of robbery. This view of it is not without support in the testimony.

Finding no reversible error in the record, we are of opinion the judgment should be affirmed, and it is accordingly so ordered. 
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