
    WEAVER v. STATE.
    (No. 10191.)
    (Court of Criminal Appeals of Texas.
    May 26, 1926.
    Rehearing Denied March 2, 1927.)
    1. Criminal law @=31099(6). — Statement of facts filed over 90 days after notice of appeal cannot be considered (Code Cr. Proc. 1925, art. 760, § 5).
    Under Code Cr. Proc. 1925, art. 760, § 5, statement of facts filed over 90 days after notice of appeal cannot be considered.
    2. Criminal law @=>923(2) — Juror, discovering during trial that defendant was party with whom he had had difficulty, should not have served, if diligence to discover prejudice was sufficient.
    Juror, stating on voir dire examination that he did not know defendant and would give him a fair and impartial trial, but discovering later in trial that defendant was party with whom he had had a difficulty, should not have served on jury, if diligence to discover prejudice was sufficient.
    3. Criminal law @=>923(9) — Defendant, not informing counsel of difficulty with juror, failed to exercise proper diligence, and cannot complain of juror’s prejudice after verdict.
    Defendant knowing, when he agreed to accept juror, that latter was party with whom he had had difficulty, and not informing his counsel of such fact, did not exercise proper diligence to ascertain juror’s prejudice, and cannot complain thereof after verdict.
    On Motion for Rehearing.
    4. Criminal law <§=1099(6)—Showing of reasons for delay in filing statement of facts held too indefinite to justify consideration of statement (Code Cr. Proc. 1925, art. 760, § 5).
    Showing that defendant’s attorney requested court stenographer on several occasions to begin preparation of statement of facts, and that stenographer promised to have it ready, but finally said he was sick “or claimed to be,” held too indefinite and general to justify consideration of statement of facts not filed within time required by Code Cr. Proc. 1925, art. 760, § 5.
    5. Criminal law <©=923(9)—Testimony and defendant’s presence during voir dire examination held to show that he knew of juror’s prejudice precluding complaint after trial.
    Testimony on motion for new trial as to acts, transactions, and conversations between defendant and alleged prejudiced juror, who was not challenged, and fact that defendant was present during voir dire examination, held to warrant holding that he knew of prejudice, and hence could not complain thereof after verdict, where he volunteered no information to his counsel as to such matters.
    Commissioners’ Decision.
    Appeal from District Court, Navarro .County ; Hawkins Scarborough, Judge.
    Ab Weaver was convicted of murder, and he appeals.
    Affirmed.
    Callicutt & Upchurch and Taylor & Howell, all of Corsicana, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   BERRY, J.

The offense is murder, and the punishment is 5 years in the penitentiary.

The statement of facts was not filed until more than 90 days after the notice of appeal was given, and under the statute it cannot be considered. Section 5, art. 760, 1925 Revision C. C. P.

In his motion for a new trial, appellant contends that he was not accorded an impartial jury as that term is defined in the decisions of this court, in that the juror Y. B. Reese was prejudiced against him. The court heard testimony on this issue, and the effect of the testimony was that he stated on his voir dire examination that he did not know the defendant, and that he would give him a fair and impartial trial, but that later in the trial he discovered that the defendant was the same party with whom he had had a difficulty on a former occasion. The juror detailed this former difficulty, and, if the diligence to discover the prejudice of the juror had been sufficient, we think that he should not have served on the jury. Huebner v. State, 3 Tex. App. 458; Long v. State, 10 Tex. App 186; Sewell v. State, 15 Tex. App. 56; Pierson v. State, 18 Tex. App. 524; Lott v. State, 18 Tex. App. 630; Hughes v. State (Tex. Cr. App) 60 S. W. 563; Adams v. State, 92 Tex. Cr R. 264. 243 S. W. 474.

The motion for a new trial, however, shows that the appellant knew, at the time that he agreed to accept the juror Reese as one of his jurors, that Reese was the same party with whom he had had a difficulty. He certifies, however, in his motion, that he had not told his counsel this fact. The record is insufficient to show that Reese was guilty of any misconduct when serving on the jury The burden of appellant’s .complaint is not that he was guilty of misconduct, but that he was not impartial. We have examined the record very carefully, and believe that the testimony of the jurors, taken on the motion for a new trial, discloses no fact and reveals no situation that was not known to the appellant at the time he accepted the juror Reese. The testimony of said jurors is insufficient to show any more than that, after the verdict had been reached and the penalty fixed by the jury, Reese then told the jury about his prior knowledge of the defendant and about his prior difficulty with him. It would hardly do to say that the fact that appellant failed to disclose to his counsel his past relations toward the juror Reese could be taken advantage of by him after the verdict had been rendered. The most meager measure of diligence would have certainly required that he disclose to his counsel his prior knowledge of those summoned on his venire, and, failing to do this, he cannot be heard to complain that his counsel did not know of a prior difficulty that he had had with one of the jurors until after the verdict had been rendered. None of the cases cited by appellant in his brief and none we have examined go further than to hold that the fact that a prejudiced juror serves on a case where the appellant did not know of such prejudice and had used reasonable diligence to ascertain said fact is sufficient to warrant a new trial. In none of said cases is there a suggestion to the effect that appellant may fail to exercise proper diligence to ascertain the prejudice of the juror or that he may know of his prejudice and fail to challenge him and then complain of such prejudice after a verdict is rendered. The law of this state does not countenance an experimental trial. A party will not be permitted to speculate as to the result of taking a prejudiced juror and then complain because of the verdict rendered against him by the jury on which such prejudiced juror serves.

Finding no error in the record, the judgment is in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE,. .7,

Appellant presents two questions in his motion. He insists that we should give consideration to his statement of facts, notwithstanding same was filed after the expiration of the time allowed by statute, on the proposition that he has made sufficient showing that he was unable to procure the statement of facts and have same filed within said time. We have carefully examined what purports to be the showing made by appellant’s attorneys in this connection. The motion for new trial was overruled on December 26, 1925, and the document. sworn to by appellants attorneys as setting out their reasons for failing to have statement of facts' filed merely states in general terms:

“That thereafter on several occasions appellant’s attorney requested of said court stenographer that he begin with the preparation of said statement of facts * * * and that said court stenographer promised that he would have said statement of facts ready.”

It is further stated “that finally said court stenographer was sick with the flu, or claimed to be.” There is no other showing made in this regard. No affidavits, or proof by any physician, or by the court stenographer himself, of the fact that he was so ill as to be unable to work, are furnished, nor is there any specific or definite showing made or reason given why said statement of facts was not prepared prior to the time of such illness, if any. The showing is entirely too indefinite and general to justify us in setting aside the rule of the statute and giving consideration to such statement of facts.

The other ground of appellant’s motion is that we erred in holding that he failed to exercise proper diligence to ascertain the prejudice, if any, of the juror Reese, and in holding that appellant knew .of the prejudice of such juror and failed to challenge him. We have carefully considered the argument advanced by appellant in connection with the testimony heard on the motion for new trial. All of the testimony tending to show that Reese entertained prejudice against appellant related to acts and transactions and conversations had between appellant and Reese, which facts must of necessity have been as well known to appellant as to Reese. Appellant was present during the voir dire examination of juror Reese, ancl volunteered no information concerning the matters which had occurred between himself and Reese. We regret that this court cannot lay down rules governing such cases based on the varying intelligence and knowledge of the parties who might be involved. We cannot say that this appellant did not know what his duties were in the matter of telling his attorneys what he knew, and that another party charged with crime should know We can only lay down a rule of law applicable to such cases in general, and enforce same as far as we can. See Lowe v. State, 88 Tex. Cr. R. 317, 226 S. W. 674, for extended discussion of the questions involved in this matter.

We are unable to agree.with either contention made by appellant, and the motion for' rehearing will be overruled. 
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