
    JOHNSON v. STATE.
    (No. 10903.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    Rehearing Denied Jan. 25, 1928.
    1. Criminal law <@=>193 — Retrial, after conviction at former trial was reversed on appeal for error, does not violate rule against double jeopardy (Pen. Code 1925, art. 1335; Code Cr. Proc. 1925, arts. 8, 417, 759).
    Since Pen. Code 1925, art. 1335, denounces offense of willfully obstructing a railroad track and causing death of individual therefrom, where defendant was charged in indictment with both offenses, and state abandoned murder count and convicted defendant of obstructing a railroad track, which was reversed on appeal, retrial charging offense of obstructing railroad track did not violate rule against double jeopardy, in view of Code Cr. Proc. 1925, art. 8, and articles 417, 759.
    2. Criminal law <@=>1144(4)— Overruling plea' of pendency of another suit raises presump- • tion that dismissal of other suit was entered.
    Since trial court overruled plea of pendency of suit in another county, presumption is raised that dismissal of such suit had been entered.
    3. Criminal law <@=>1 144(4)— Judgment overruling pleas of abatement and former jeopardy, reciting evidence was heard thereon, raised presumption that pleas were not sustained by facts.
    Judgment of trial court in overruling pleas in abatement and of former jeopardy, reciting that evidence had been heard preliminary to denying pleas, raises presumption that averments in pleas were not sustained by facts.
    4. Jury <@=>103(1 1) — Trial court has discretion to refuse challenge of juror whose opinion is based on hearsay which juror feels able to disregard (Code Cr. Proc. 1925, art. 616).
    Trial court may exercise discretion to refuse to sustain challenge, under Code Or. Proc. 1925, art. 616, of juror whose opinion is based on hearsay and juror feels able to disregard it.
    5. Jury <@=>97(l) — Trial court has no discretion to overrule challenge to biased or prejudiced juror (Code Cr. Proc. 1925, art. 616, subd. 12).
    Trial court has no discretion to refuse to sustain challenge of juror under Code Or. Proc. 1925, art. 616, subd. 12, who is biased or prejudiced.
    6. Criminal law <©=>1166½ (8) — Failure to sustain challenge of juror for cause is not reversible error unless defendant is injured.
    Where court erroneously fails to sustain proper challenge of juror for cause, reversal will not result unless error brought injury to defendant.
    7. Criminal law <@=>l163(2) — Injury is inferred where challenged juror was excused on peremptory challenge and after exhaustion of defendant’s peremptory challenges “objectionable juror” was accepted.
    Injury is inferred, where challenged juror was excused by defendant on peremptory challenge and after exhaustion of his peremptory challenges there was thereafter placed on jury an “objectionable juror,” which is one shown by examination to have formed some opinion as to guilt or innocence of defendant.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Second Series, Objectionable Juror.]
    8. Criminal law <@=>1119(1) — Bill of exceptions must be framed to show that juror forced on defendant because of exhaustion of peremptory. challenges was objectionable.
    Defendant claiming that overruling challenge of juror for cause and exhaustion of his peremptory challenge forced objectionable juror on him must frame bill of exceptions so as to bring before reviewing court knowledge of facts on which it is claimed that juror forced on Mm was objectionable.
    9. Criminal law <@=>1092(7) — Statement of facts not having been filed within 90 days allowed after notice of appeal must be ignored (Code Cr. Proc. 1925, art. 760).
    Where term at which defendant was convicted ended December 30, 1926, and notice of appeal was given December 29, and 90 days thereafter were allowed to file statement of facts, and no excuse for delay was shown, reviewing court, under Co„e Or. Proc. 1925, art. 760, must ignore statement.
    10. Criminal law <@=>1120(1) — Reviewing court, lacking knowledge touching evidence, cannot consider claimed errors in rulings thereon.
    Reviewing court, lacking knowledge touching evidence, is precluded from appraising bill of exceptions relating to trial court’s rulings on receipt and rejection of evidence.
    On Motion for Rehearing.
    11. Criminal law <@=>1099(6) — Statement of facts prepared by trial judge within 40 days after receipt of defendant’s statement could be considered (Code Cr. Proc. 1925, art. 760, subd. 4).
    Where defendant was unable to pay for statement of facts prepared by his attorney, who submitted it to state’s attorney, -who could not agree thereon and on same day delivered it to trial judge who prepared statement and filed it within 40 days after he received it, under Code Or. Proc. 1925, art. 760, subd. 4, such statement could be considered by 'reviewing court. ’
    12. Criminal law <§=1091 (2)— Bill complaining that testimony of railroad’s corporate name varied from indictment was defective, where it did not set out evidence.
    Where indictment charged that defendant interfered with and displaced switch on track of T. & P. Railroad, bill of exceptions reciting that witness S. testified that railroad’s corporate name was T. & P. Railway Company, whereupon objection was made to testimony as to wreck on track of latter company as being at variance with indictment, was defective, where it did not set out further evidence given by witness or other witnesses.
    13. Indictment and information <§=180 — Under indictment charging displacing switch of T. & P. Railroad, evidence that name was T. & P. Railway held not variance therewith.
    Where indictment charging that defendant displaced a switch on track of T. & P. Railroad was only the designation of the railroad track where the switch was located, testimony that corporate name of railroad was T. & P. Railway Company field not at variance therewith.
    14. Criminal law <§=1091 (4) — Bill of exceptions complaining of admission of defendant’s confession was incomplete, wherein confession was not incorporated.
    Bill of exceptions complaining of admission in evidence of defendant’s confession because it was hot original confession and was not read to him before signing was incomplete, where confession was not incorporated therein.
    15. Criminal law <§=402(I) — Lost confession may be proved by parol on laying proper predicate.
    If written confession has been lost, it may be proved by parol on laying a proper predicate.
    16. Criminal lav/ <§=1091 (4) — Bill of exceptions complaining of admission of confession because it was not voluntary was defective, where confession was not ' incorporated therein.
    Bill of exceptions complaining of admission of defendant’s confession, objected to because it was not voluntary, was defective, where confession was not incorporated therein.
    17. Criminal law <§=404(4)— Objection that lock found by witness was not shown to have been switch lock held to weight rather than admissibility.
    In prosecution for displacing a switch on a railroad track, .where defendant confessed he 'twisted switch lock off and hid it and it was not found at place indicated, and defendant while in jail told officer he had thrown lock against brush pile, where officer found it, objection to officer’s testimony of finding lock that it was not shown to have been lock missed from switch on night of wreck went to weight of testimony and not to admissibility.
    18. Criminal law <§=537 — Evidence of finding switch lock as result of defendant’s information was admissible as circumstance that it was lock twisted from switch (Code Cr. Proc. 1925, art. 727).
    In prosecution for displacing and interfering with a switch on a railroad track, evidence of witness of finding switch lock near brush pile, where defendant had informed witness that he threw it after prying it off, was admissible under Code Cr. Proc. 1925, art. 727, as a circumstance that lock found was one twisted from switch on night of wreck.
    19. Criminal law <§=l 169(12) — Admitting testimony of defendant’s statements while in jail that he wrecked train held not reversible error, in view of his confessions.
    In prosecution for displacing switch on a railroad track, admitting testimony, on question of voluntary confession, of sheriff as' witness that defendant, while in jail, had told him that he wrecked train by twisting off.the switch lock and cocking the switch enough to wreck the train, was not reversible error, where identical statement was found in written confession, and defendant while in jail several days after confession told his parents he wrecked train, a fact admitted by defendant as a witness.
    Appeal from District Court, Rains County; J. M. Melson, Judge.
    Josh Johnson was convicted of unlawfully and willfully displacing and interfering with a switch upon the track of a railroad, and he appeals.
    Affirmed.
    R. M. Smith and Bozeman & Cathey, all of Quitman, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

By indictment in the district court of Wood county it was charged that the appellant “did unlawfully and willfully displace and interfere with a switch upon the track of a railroad,” etc. The jury assessed against' "him a punishment of confinement in the penitentiary for a period of seven years.

On a former trial in the district court of Wood county, the appellant, on an indictment in two counts,' was convicted with a penalty of confinement in the penitentiary for 99 years assessed against him. Upon that trial each of the counts contained the language above quoted; each of the counts charging, however, that, as a result of the unlawful act, the death of Charlie Cox resulted. The first count charged that the death was brought about by the appellant’s act upon malice aforethought; that is, it contained the averments appropriate to a charge of murder. On the trial that count was abandoned. On appeal, the judgment was reversed, for the reason that, upon the count in the indictment upon which the accused was convicted, the maximum penalty allowed by law was confinement in the penitentiary for a period of seven years. After the reversal, the indictment upon which this conviction is founded was returned. The indictment is, in substance, the same as that upon which the accused was formerly convicted, save that, in the present indictment, the reference to the death of Charlie Oox is omitted. After the second indictment (the one upon which the present conviction is had) was returned, the case was transferred by change of venue to the district court of Rains county, where the trial at present under consideration took, place.

By a plea of former jeopardy, appellant asserts that his first trial resulted in an acquittal ; that is, that hi§ acquittal of murder operated to exculpate him from prosecution for the criminal act which resulted in the death of the person named in the court in the first indictment which charged him with murder. The position is not tenable. On the trial from which this appeal is taken, appellant was convicted of the Commission of the offense charged in the second count of the former indictment. The state having a right to prosecute him for the offense charged in that count was privileged to exercise the right either upon the old indictment or upon a new one filed at the time when the offense charged was not barred by the statute of limitations. The statute reads thus:

“If any person shall willfully place any obstruction upon' the track of any railroad, or remove any rail therefrom, or displace or interfere with any switch thereof, or in any way injure such road, or do any damage to any railroad, locomotive, tender or car whereby the life of any person might be endangered, he shall be confined in the penitentiary not less than two nor more than seven years. If the life of any person is lost by such act the offender is guilty of murder.” Article 1335, P. C. 1925.

Upon mature deliberation, this court, upon the former appeal, reached the conclusion that the statute quoted denounces two offenses, namely: (a) That of willfully obstructing a railroad track; and (b) with malice aforethought, by causing the death of an individual by willfully obstructing a railroad track. As stated above, on the former trial the offense of murder was charged but was abandoned. In the second count, the present offense was charged, which resulted in a conviction and the granting of a new trial by reversal upon appeal. See Johnson v. State, 97 Tex. Cr. R. 658, 263 S. W. 924. In reaching the conclusion that the plea of former jeopardy is not available upon the facts stated against the present conviction, what is understood to be a rule of practice established by statute and judicial construction of long standing in this state is observed. “The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place.” Article 759, C. C. P. 1925. The effect follows whether a new trial is given in the trial court or upon appeal. See Cox v. State, 7 Tex. App. 495. In article 417, C. C. P. 1925, the use of separate counts in an indictment is sanctioned and the declaration is made that, if the indictment be good in either of the counts, it is sufficient. Article 8, C. C. P. 1925, declares that one shall not twice be put in jeopardy of life ot liberty for the same offense. Each of the statutes mentioned has received judicial interpretation, as is illustrated by many decisions which are collated in Vernon’s Ann. Tex. C. C. P., under the several articles of the statutes mentioned. In number, the cases are too many for review. As we understand them, however, they, with uniformity, support the conclusion announced above, namely, that the law against double jeopardy is not offended in the present conviction. We refer to Mizell v. State, 83 Tex. Cr. R. 305, 203 S. W. 49; Stewart v. State, 35 Tex. Cr. R. 175, 32 S. W. 766, 60 Am. St. Rep. 35. In the latter case, Stewart was indicted for rape and incest, each growing out of the same transaction. He was acquitted of rape, and against his trial for incest he interposed his prior acquittal of the offense of rape. The rejection of the .plea by the trial court was upheld upon appeal. Many other illustrations might be given in the cases collated under the articles of the statute mentioned.

By way of plea to the jurisdiction, appellant contends that the pendency of the old indictment against him in Wood county is conclusive against the jurisdiction of the district court of Rains county over the offense. Granting that it would be unjust and illegal for the state to prosecute the appellant for the same offense growing out of the same unlawful act in both Wood and Rains counties, the dismissal of the suit in Wood county would be an adequate answer to a plea in abatement. From Eney. of Law and Proc. vol. 1, p. 25, the following quotation is taken:

“The tendency of the later cases and a preponderance of authority sustain the doctrine that it is a good answer to a plea of the pend-ency 1 of a prior action for the same cause that the former suit has been discontinued, whether the discontinuance be before or after the filing of the plea. Under this doctrine the plea will be overruled unless the prior suit is pending at the time of t(ie trial of the second.”

There is nothing in the record negativing the idea that the first prosecution had been dismissed at the time of the present trial. If its dismissal was essential, the action of the trial court in overruling the plea would be supported by the presumption that the dismissal had been entered. We will add, however, with reference to both the plea in abatement touching another suit pending and the plea of former jeopardy, that there is found in the record no bills of exceptions, and the judgment of the trial court in overruling the pleas contains a recital with reference to each of them that evidence had been heard preliminary to denying the pleas. This recital would raise the presumption that the averments in the pleas were not sustained by the. facts. No intimation is intended, however, that, assuming the "averments in the plea to be true, the result would be fatal to the conviction. In a recent ease it was said:

“The pendency of one indictment does not prevent the grand jury from returning subsequent indictments charging the same offense.” Stovall v. State, 97 Tex. Cr. R. 74, 260 S. W. 178.

The facts in the Stovall Case, supra, which was affirmed, and the conclusions announced, are analogous and consistent with the result of the trial of the appellant in the present instance.

In bill of exceptions No. 2 it is made to appear that a juror named Taylor declared on his voir dire examination that “he was prejudiced against negroes because a negro had killed his grandfather.” Appellant was a negro and interposed a challenge to the juror for cause, which the court overruled. Appellant excused the juror upon a-peremptory challenge. He subsequently exhausted his peremptory challenges and relies upon the transaction as a ground for reversal. In his bill of exceptions supporting this position, appellant says:

“The court overruled defendant’s challenge for cause and retained said juror upon the panel, and defendant was forced to exhaust his challenges upon said juror, and defendant did exhaust all of his said challenges allowed by law in selecting the said juror, and was forced to take upon said jury jurors that were objectionable to him.”

From the averments in the bill, it appears that the court was in error in failing to sustain the challenge for cause directed at juror Taylor. In qualifying the bill, the court states that, in response to an inquiry by the court, the juror said, in substance, that his prejudice against negroes would not influence him in the trial of the case, but that he would give to the accused a fair and impartial trial. The statute (article 616, C. C. P. 1925) states the reasons for a challenge for cause. The twelfth reason includes prejudice against the defendant. The thirteenth reason relates to an opinion formed upon hearsay. Touching the last-mentioned reason, it was within the province of the court to exercise discretion and to refuse to sustain the challenge where the opinion is based upon hearsay, and the juror feels able to disregard it. It is understood, however, that no such

discretion attaches to subdivision 12 of the statute, which gives to the accused or the state the right to have excluded from the panel a biased or prejudiced juror. ' Such has been the construction of the statute announced many times. See opinion of Justice Lattimore in Hooper v. State, 100 Tex. Cr. R. 147, 272 S. W. 493. Conceding that Taylor was a prejudiced juror, and that, in refusing to excuse him, the court was wrong, the fact remains that he did not sit upon the jury, and the question occurs, Does the bill of exceptions show that the improper ruling worked an injury? It seems to be the rule that, where the court erroneously fails to sustain the proper challenge of a juror for 'cause, a reversal will not result 'unless it is made to appear that the error brought injury to the accused. Injury will be inferred where it is made to appear that the challenged juror was excused by the appellant upon a peremptory challenge; that all of his peremptory challenges were exhausted, and that thereafter there was placed upon the jury an “objectionable” juror. See Hudson v. State, 28 Tex. App. 338, 13 S. W. 388; Keaton v. State, 40 Tex. Cr. R. 139, 49 S. W. 90; Maines v. State, 35 Tex. Cr. R. 113, 31 S. W. 667; Branch’s Ann. Tex. P. C. § 541. By the term “objectionable juror” is not meant that the juror is subject to challenge for cause, but that his examination must show some degree of disqualification, such, for example, as the formation of some character of opinion as to the guilt or innocence of the accused. See Connell v. State, 45 Tex. Cr. R. 153, 75 S. W. 512. Under the conditions mentioned above, to make such a showing as will demand the attention of the reviewing court, it is essential that the bills of exceptions be so framed as' to bring before the appellate court knowledge of the facts upon which it is claimed that the juror forced upon the accused is “objectionable,” as that term is explained hereinabove. In passing upon the matter, Presiding Judge White, in the case of Hudson v. State, 28 Tex. App. 338, 13 S. W. 389, thus expressed the views of the court:

“It is true that defendant says he exhausted his peremptory challenges in the selection of the jury, and that an objectionable juror was put upon him and, notwithstanding his challenge, sat upon his trial. He does not show wherein said juror was objectionable nor the reasons of his objection to Mm, nor that he was not a fair and impartial juror. An ‘objectionable’ juror, in the sense in which the term is used in this connection, means one against whom such cause’for challenge exists as would likely affect his competency or his impartiality in the trial. Without some such showing it is idle simply to say that a juror is objectionable. Having exhausted his peremptory challenges he was not under the circumstances here presented entitled to exercise a further challenge of this character. Loggins v. State, 12 Tex. App. 65.”

See, also, Carter v. State, 45 Tex. Cr. R. 431, 76 S. W. 437.

The case was tried at a term ending on the 30th day of December, 1926. The statement of facts was filed on the 5th of May, 1927. Notice of appeal was given on the 29th of December, 1926. Ninety days thereafter were allowed within which to prepare and file a statement of facts. The statement found in the record not having been filed within the time allowed by law and finding nothing in the record to excuse the delay, this court has no choice other than to ignore the statement of facts in obedience to article 760, C. C. P. 1925.

In the record are a number of bills of exceptions relating to the rulings of the court upon the receipt and rejection of evidence. A lack of knowledge touching the evidence that was before the court and jury precludes this court from appraising the several bills mentioned.

Por a like reason this court is not in a position to determine whether the special charges requested were called for by the evidence adduced.

The judgment is affirmed.

• On Motion for Rehearing.

HAWKINS, J.

On original submission we declined to consider the statement of facts and some bills of exception which could not be appraised without knowledge of the facts. It is now made to appear by proper affidavits that, on account of appellant not being able to pay for the statement of facts, his attorney prepared one and submitted it to the attorney representing the state within the 90 days from the date of overruling motion for new trial. On the same day it was so submitted, appellant’s attorney was notified by the district attorney that he could not agree to it,' and on the same day it was delivered to the trial judge, who prepared the statement of facts found in the record and filed it within 40 days after he received the appellant’s statement of facts. Subdivision 4 of article 760, C. C. P., provides as follows:

“When the duty devolves upon the court to prepare the statement of facts, he shall have such time in which to do so as he deems necessary, not to exceed forty days after he receives the defendant’s statement of facts.”

By- the showing made, appellant seems to bring himself within the purview of the statute quoted. It follows that the statement of facts and bills of exception incident thereto should be considered.

The questions disposed of in our original opinion are believed to have been correctly decided and will not be again reviewed.

It was alleged in the indictment .that appellant interfered with and displaced a switch on “the track of a railroad, ⅜ ⅜ *' to wit, the track of the Texas & Pacific Railroad.” It is recited in a bill of exception that the witness Stephens testified that the corporate name of the railroad was the “Texas & Pacific Railway Company,” whereupon objection was made to said witness or any other witness testifying as to a wreck on the track of the latter company, as being at variance with the allegations in the indictment. The bill is defective, in that it does not set out any further evidence given by Stephens or any .other witness. The rule invoked by appellant seems to apply where theft is charged and it becomes necessary to prove want of consent. White v. State, 24 Tex. App. 231, 5 S. W. 857, 5 Am. St. Rep. 879; Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098. See, also, note 10, Vernon’s C. C. P. 1925, vol. 1, p. 273. That is not required in the present case. The allegation in' the indictment was only the designation of the railroad track where the switch was located. The distinction is ‘ pointed out in Clay v. State, 65 Tex. Cr. R. 590, 146 S. W. 166, where accused was charged with placing obstructions on the railroad track.

In bill No. 4 appears complaint at the admission in evidence of appellant’s confession because it was not the original confession and was not read over to appellant before he signed it. This bill is incomplete in omitting to have incorporated in it the confession introduced. Dement v. State, 39 Tex. Cr. R. 271, 45 S. W. 917; Stroube v. State, 40 Tex. Cr. R. 581, 51 S. W. 357. However, we note that in qualifying the bill the court says the instrument introduced was a carbon copy of the original which was read to appellant before he signed it. It appears that both the original and the copy were signed by appellant and properly witnessed. The only difference is that in the warning on the original it is recited that appellant was charged with “murder,” which last word was inadvertently omitted in the warning as it appears in the copy introduced. The original was lost and could not be found. If the written confession has been lost, it may be proved by parol upon laying a proper predicate. Pierce v. State, 54 Tex. Cr. R. 424, 113 S. W. 148; Roberts v. State, 67 Tex. Cr. R. 580, 150 S. W. 627. We see no error in the court’s ruling in the matter.

Complaint .is brought forward by bill of exceptidn No. 5 because of the admission of the confession, based upon the objection that it was not voluntary. This bill is defective in the same particular as is the preceding one in having failed to include therein the confession. Appellant’s evidence, given on the trial, if true, showed conduct on the part of the officers and those acting with them which would have rendered the eon fession inadmissible, but appellant’s testimony in this regard was contradicted by every witness present when the confession was taken, and the issue of fact thus made was submitted for the jury’s determination in an admirable charge on the subject.

In the written confession of appellant was a statement that he had twisted the switch loch off with a bridge spike, and had hidden the lock and spike under the head block of the switch stand. We gather from the evidence that the lock could not be found at the place indicated. Some months after appellant’s arrest, and while he was in jail, Officer Horton testified over objection that appellant told him that he (appellant) had twisted the lock off the switch stand and had thrown it over against a brush pile west of the switch stand; Horton went to the scene of the wreck and found a Texas & Pacific switch lock near the place where appellant said he threw it. The objections urged were, first, that it was not shown to have been the lock which was missed from the switch on the night of the wreck; and, second, that it was not an instrument'with which a crime had been committed, nor the fruits of a crime. The first ground of objection went, we think, more to the weight than to the admissibility of the evidence. As said by the court in qualifying the bill, the finding of the lock as a result of information given by appellant was a strong circumstance that the lock found was the one twisted from the switch stand the night of the wreck. The other ground of objection'is we think based upon a misconception of the statute. Article 727 provides that, although a party may be under arrest if he “makes statements of fact or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed, * * *” such statements are admissible against him. That part of the statute which refers to the finding of secreted or stolen property or the instrument with which an offense was committed is only illustrative of the evidence which is to be received under such circumstances.

Upon the trial, appellant denied any connection with wrecking the train and claimed that the confession which had been introduced in evidence against him did not speak the truth, was not voluntarily made, hut that he was coerced to make it. He testified that the sheriff and other parties came to the jail where he was confined, whipped him severely, told him that a mob was coming for him, and that the sheriff struck him with a pistol, and because of this he did /tell them he would .say he wrecked the train; that he was then taken before the county attorney, where he made his confession. When the sheriff was called by the state, he denied every charge made by appellant upon which was based the claim that the confession was not voluntary, as did every other witness present, and the sheriff, while giving his version of the matters occurring in the jail at the very time appellant claims he was coerced, testified that appellant then told them voluntarily that “he wrecked the train by twisting off the switch lock and ‘cocking’ the switch enough to wreck the train.” To the recital by the sheriff of what appellant said while in jail objection was urged. While the ground of objection is not stated in the bill, it was apparently based upon the fact that appellant was confined in jail at the time. • Appellant himself had opened up an investigation of what transpired in the jail in so far as it related to whether or not he had been coerced. It may be the sheriff was permitted to go too far in his evidence, but, under the peculiar facts of the case, we are of opinion a reversal should not result. In the written confession are found identically the same statements. Appellant made substantially the same statements to the officers as to where he had thrown the switch lock and as a result of which it was there found. It was elicited from the sheriff on cross-examination by appellant himself that several days after the written confession was made appellant, while in jail, told his mother and father that he wrecked the train. While appellant was testifying on direct examination his own counsel elicited from him the fact that he had made this admission to his father and mother. Appellant undertook to explain the admission by claiming that the officers had advised him to so tell them. Under these circumstances, we would not be' justified in ordering a reversal because of the matter complained of.

The other bills relating to the introduction .and exclusion of evidence and the refusal of certain special charges have been examined. They are thought not to manifest error.

The motion for rehearing is overruled. 
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