
    McCLURE v. STATE.
    (No. 9626.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1926.
    Rehearing Denied Feb. 24, 1926.)
    1. Jury <&wkey;l!05(3), 108 — Sustaining staters peremptory challenge to juror, who said he was prejudiced against whisky law, and that penalty was too severe, held not abuse of discretion.
    Sustaining state’s peremptory challenge to juror, who stated he was prejudiced against whisky law, and that penalty was too severe for the offense, was not an abuse of discretion.
    2. Criminal law <&wkey;l 174(6)— Error, if any, in permitting jury to take indictment containing quashed counts to jury room held not to require reversal, in view of low penalty assessed.
    Error, if any, in permitting jury to take into retirement bill of indictment containing quashed counts held not to require reversal, where accused received lowest penalty under testimony clearly showing guilt, and court certified no testimony was offered that jury read quashed counts after retiring.
    Commissioners’ Decision.
    Appeal from District Court, Grayson County; F. E. Wilcox, Judge.
    Jess McClure was, convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Jas. D. Buster, of Sherman, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is selling intoxicating liquor, and the punishment is confinement in the penitentiary for one year.

Appellant complains because the court sustained a peremptory challenge urged by the state to the juror O’Shields. The court qualifies this bill by stating that the juror said that he was prejudiced agjainst the whisky law, and that the penalty was too severe for the offense. Under this qualification the court did not abuse his discretion in sustaining a challenge for cause to this juror. If he was prejudiced against the law, this was a proper, ground of challenge for cause. The court did not err in refusing to instruct the jury on the question of appellant being an innocent agent. Elam v. State, 16 Tex. App. 39; Knight v. State, No. 9697, 280 S. W. 815.

Appellant also complains because the court permitted the'jury to take with them in their, retirement the bill of indictment which contained counts -1 and 5, which counts had been quashed. If any error is shown in this matter, it is not of sufficient importance to reverse this ease. The appellant received the lowest penalty under testimony clearly showing his guilt, and which testimony was in no wise disputed. It is also true that the court certifies in explaining this bill that no testimony was offered to show that the jury ever read counts 4 and 5 after they had retired to consider their verdict.

The evidence being amply sufficient, and no errors appearing 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.

HAWKINS, J.

In his motion appellant raises no new question, presents no additional authorities nor argument which leads us to conclude our disposition of the case was erroneous.

The motion for rehearing is overruled. 
      <gz^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     