
    BROWN v. STATE.
    (No. 9362.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1925.
    Rehearing Granted Dec. 22, 1926.)
    1. Criminal law &wkey;>l 144(7) — Application for continuance presumed to be subsequent to first application where bill of exceptions does not show otherwise.
    Where bill of exceptions to refusal of continuance does not show whether application for continuance was a first or subsequent application, it will be presumed to be a subsequent application. •
    
    2. Criminal law <&wkey;>595(IO) — Refusing continu-uance to secure witness’ testimony consisting almost wholly of conclusions held not error.
    In prosecution for transporting liquor, refusing continuance to secure witness to show that defendant did not know of contents of jug and bottle held not error, since testimony would consist almost wholly of conclusions.
    3. Criminal law <&wkey;614(2) — Refusing application for continuance subsequent to first application of accused held not error, where another witness gave same testimony as absent witness would have given.
    In prosecution for transporting liquor, refusing application for continuance subsequent to first application to secure witness to testify that jug and bottle belonged to defendant’s father held not error, where another witness testified to practically identical facts.
    4. Criminal law &wkey;>! 169(5)— Evidence as,to whisky-making equipment in residence of defendant charged with transporting liquor held not reversible error where withdrawn from jury.
    In prosecution for transporting liquor, evidence that mash and other whisky-making equipment were found at defendant’s residence, which was withdrawn from jury by oral and by written instructions, held not reversible error.
    On Motion for Rehearing.
    5. Criminal law <&wkey;>l 166>/2(8) — Jury <&wkey;>97(!) —Juror held incompetent because not impartial and his sitting prejudicial error.
    Juror who had advised with officers as to manner of apprehending defendant said that he did not think he was a qualified juror but could and would try the case according to the law and evidence, held incompetent and his sitting in the ease prejudicial error.
    6. Criminal law <&wkey;>8l4(!7) — Charge on circumstantial evidence in liquor prosecution held not justified on testimony defendant was detected in act.
    Court should not have charged on circumstantial evidence in prosecution for transporting liquor where defendant was driving automobile when he met officers, threw out a jug of whisky, and scuffled with them over a bottle of liquor on the seat with him.
    Commissioners’ Decision.
    Appeal from District Court, Collingsworth County; R. L. Templeton, Judge.
    E. W. Brown was convicted of transporting liquor, and be appeals.
    Reversed and remanded.
    Jas. C. Mahan, of Wellington, 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. appellant was convicted in the district court of Collingsworth county for the offense of transporting liquor and his punishment assessed, at confinement in the penitentiary for a term of two years.

Appellant complains in his bill of exceptions No. 1 at the Court’s action in overruling his application for a continuance, and in his brief he terms this application as his first application. The bill of exceptions, however, and the application itself, fails to show whether it is a first application or a subsequent application, and when the bill of exceptions taken to the refusal does not show whether it is a first or subsequent application, it will be presumed to be a subsequent application. Massie v. State, 30 Tex. App. 64, 16 S. W. 770; Roma v. State, 55 Tex. Cr. R. 345, 116 S. W. 598.

The defendant alleged:

“That he expects to prove by said witness, who was his wife, and who was in the car with him at the time the offense is alleged to have been committed, that the defendant did not put the alleged whisky in the car and did not know ■the contents of the jug and bottle found therein by the officers until just before the officers stopped the car, when a third party to whom said alleged whisky and jug and bottle belonged and who was in the car at that time told the defendant to throw out said jug and bottle, and that then when the officers stopped the car was the first time that this defendant knew the contents of the jug and bottle or had any knowledge of what they were supposed to contain.”

The foregoing is taken from the motion for a continuance, and it shows on its face to consist almost wholly of the conclusions of the witness, and the court was not in error in refusing to grant the continuance to enable the said witness to give such testimony.

Appellant further alleged, however, that he expected to prove by this witness that she saw one Jesse Preston place said jug and bottle in said car and heard him tell this defendant on inquiry that said jug and bottle were being taken to his father who lived in Wellington; that they belonged to him. This testimony was probably admissible, and we cannot say that it was not material, but it does not follow that reversible error was committed in the court’s failure to grant a new trial on account of the overruling of the motion for a continuance, for the statement of facts shows that the witness Harvey Henry testified to practically the identical facts that appellant expected to prove by his wife. The record .shows that appellant, Jesse Preston, Harvey Henry, and the absent witness, appellant’s wife, were riding in a-car that contained a jug and a bottle of whisky, and that appellant threw the whis-ky out of the car when they met the officers who made the arrest. As explaining this conduct, appellant sought a continuance for his wife, in order that she might give-the testimony above detailed. As above stated, this was a subsequent application for a continuahce, and we are warranted, therefore, in saying that the testimony of the absent witness would have been cumulative of the testimony of Harvey Henry, whom the statement of facts show testified as follows.

“When we got'out to the car Shorty (appellant) said to Jesse, ‘What is that there in there, Jesse?’ And Jesse said, ‘That is a water jug that I had out there that I brought from my dad’s.’ He said, ‘I am carrying it home.’ That is all I heard, and that was all that was said about it. I didn’t hear anything said about the bottle. He just said that that was a water jug that he borrowed from his dad and was carrying it home. Shorty was in the car when he asked Jesse that. I was in the car with them when we met the officers. Just before we got to the bridge and about the time we 'passed their car there I heard Jesse say to Brown, ‘Yonder is the law’; and he said ‘Throw that jug out there; it has got whisky in it.’ He said, ‘There is a bottle there in the door; get that out.’ That is all I heard him say. Shorty then made a grab for the jug and throw-ed it out.”

Under this condition of the record, the court properly refused to grant a new trial on account of the absence of the appellant’s wife.

Bill of exceptions No. 2 complains at the court’s action in refusing to sustain a challenge for cause to the juror Holfomb. The court’s qualification to this bill shows that the juror testified on his voir dire that he could and would try the case according to the law and the evidence in the case and that he knew nothing about this particular case and had no opinion as to the guilt or innocence of the defendant in this particular case. This bill was accepted by the defendant with this qualification, and, as qualified, the bill shows no error.

Bill of exceptions No. 3 complains at the court’s action in permitting the state to show that some mash and other equipment for making whisky was found at appellant’s residence'after he was arrested. The qualification to this bill shows that this testimony was withdrawn from the jury both by oral and written instructions. Under the circumstances, the bill shows no reversible error.

We are unable to say that the court was in error in refusing a new trial on account of the misconduct of the jury. The testimony as to what occurred in the jury room was conflicting, and, after a careful considertion of the same, we are not able to say that the court abused his discretion in overruling the motion for a new trial.

Finding no error in the record, it is our opinion that the judgment should be 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.

LATTTMORE, J.

We will consider at length but one question raised in this motion. Mr. Holcomb sat on the jury-. Following his voir dire examination he was challenged for cause. .Alleged error of the court in overruling this challenge is presented in bill of exceptions No. 2. It is there stated that Holcomb swore that he knew appellant and that the circumstances surrounding this case would probably influence him, if selected, and that he could not make a fair and impartial juror because of these circumstances. To this bill is appended a qualification by the trial court, in effect, that Holcomb said he felt like lie was not a qualified juror, but, answering the court, be stated that be could and would try the case according to the law and evidence; that be knew nothing about the particular case and bad bad no opinion as to the guilt or innocence of the defendant. Bill of exceptions No. 4 was taken to the overruling of a motion for new trial, based in part on the overruling of appellant’s challenge for cause of juror Holcomb, and also upon the alleged disqualification of said juror and bis misconduct in the jury room. Upon the bearing of the motion for a new trial that fa number of the jurors testified, among them Mr. Holcomb, who said:

“When I was being examined as a prospective juror in this case * * * I answered (hat, owing to the circumstances leading up to the time I made his acquaintance, I didn’t feel like serving on this jury. I said that I would try to be governed by the evidence, but that X would go into the jury box with this in my mind. * * * As a matter of fact, I couldn’t get away from that which was in my mind. There were facts and circumstances surrounding the things that I knew that made me draw conclusions. I had these things in my mind for something like a year and a half before this trial and still had them in my mind during the trial and did not forget them, and when I retired to the jury room they were still in my mind. * * * I participated in the argument of the case and advanced .my theories of the case there in the jury room and took the lead in asking that the defendant be given the two-year penalty. * * * The things that were in my mind and the things that X knew were that I had heard of this matter and it had been discussed between one of the officers and myself. * * * I conveyed to the officer with whom I was talking what information I had on being questioned by him. * * * I gave him this information to work on with reference to catching this defendant in violation of some phase of the Prohibition Baw, and of the charge for which he was indicted. I do not remember exactly what I told the officer that I talked to, but we were discussing what I knew of the actions of this defendant, and at the time I was talking to him (the officer) I had an opinion in my mind that the defendant was violating the Prohibition Law and I still have that opinion. I had that opinion before I heard any evidence in this case the other day. With that opinion fixed in my mind I went into the jury box trying to try the case on the evidence in the case and I came out of it the same way. Of course, I didn’t get entirely away from this oDinion. T tried to get away from it but I couldn’t. * * * The opinion that I had before I went into the trial of the ease would have required evidence to remove it. As a matter of fact I felt like that I had to a certain measure, though not to a great extent, been instrumental in this defendant being caught. I had an opinion as to the guilt ■or innocence of the defendant at the time they caught him, and I will say frankly that I had an opinion on this particular case and could not get away from it under the circumstances.”

We are impelled to believe Mr. Holcomb not qualified to sit on the jury in this case. The constitutional and statutory guaranty to every person tried for crime that be shall have a trial before a fair and impartial jury is violated if one man of the twelve is partial and unfair, as completely as if the whole panel bad prejudged the case. Multiplied words add nothing to the truth and force of this statement.

It is doubtful if a juror should ever be taken whose voir dire answers disclose that be is conscious of such feeling or knowledge in a particular case as would lead him to conclude and state under oath that he ought not to sit. At least the trial judge should fully explore the antecedents of such juror, and in doubtful cases be should be excused. It is true that in bis qualification to bill of exceptions No. 2 the court below certifies that the juror said be could and would try the case according to the law and the evidence. The juror may have so stated, but in bis testimony on the bearing of the motion for new trial bis recollection seems to be that be said be would try to try the case according to the law and the evidence, but that be did in fact have an opinion in this particular case before he was taken, which opinion be could not forget or get away from. He states that be had discussed and advised with the officers as to how appellant might be apprehended, and felt that he had been instrumental in bis being caught. He said that be took the lead in asking that the jury give appellant a two-year penalty. Even though the trial judge might bave been misled by the answers of the juror on bis voir dire examination, the statements made by him in connection with the motion for new trial would seem to establish the fact that the juror was biased, bad an opinion in tbis ease which be was not able to lay aside, and which influenced his verdict.

We do not think the court should have charged the jury on circumstantial evidence. Appellant was driving the car when be met the officers, and threw out a jug of whisky and scuffled with them over a bottle of liquor which seemed to be on the seat with appellant. Matters pertaining to the refusal of a continuance need not be discussed in view of our disposition of the case.

Believing that appellant did not have that fair and impartial trial to which be was entitled because of the attitude of the juror Holcomb, the motion for -rehearing will be granted, the judgment of affirmance set aside, and the judgment now reversed and the cause remanded. 
      <&wkey;For other oases see same topic and KEY?NUMBER in all Key-Numbered Digests and Indexes
     