
    WALKER v. STATE.
    (No. 9837.)
    (Court of Criminal Appeals of Texas.
    March 17, 1926.
    Rehearing Denied April 28, 1926.)
    1. Jury' @=82(3)— Service by postal card is no grounds for quashing writ of special venire, where jurors were shown to be in attendance.
    Where jurors are shown'to be in attendance on call of ease, service by postal card instead of personal service is no ground for quashing writ of special venire, unless some injury is shown.
    On Motion for Rehearing.
    2. Criminal law 166'/2(8) — Bill of exceptions showing that good challenge for cause, was overruled; that peremptory challenges were exhausted; and objectionable juror sat in case, authorizes reversal.
    If bill of exceptions shows that a good challenge for cause of juror was erroneously overruled; that peremptory challenges were exhausted; and that an objectionable juror sat in ease, a reversal will be authorized.
    3. Criminal law 11661/2(8).
    Error in overruling challenge for cause is not reversible, unless bill of exceptions shows that one or more jurors was objectionable.
    Commissioners’ Decision.
    Appeal from District Court, Young County; H. R. Wilson, Judge.
    H. O. Walker was convicted of murder, and he appeals.
    Affirmed.
    See, also, 98 Tex. Cr. R. 663, 267 S. W. 988.
    Frank J. Ford, of Decatur, for appellant.
    Marshall & King, of Graham, Sam D. Stin-son, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is murder, and .the punishment is' imprisonment in the penitentiary for life. '

There are but two bills of exceptions in the record. Bill No. 1 complains at the court’s action in overruling his challenge to three of the jurors, for the reason that said jurors on their voir dire answered that they had conscientious scruples against the infliction of the death penalty as a punishment for crime. The bill -simply shows that defendant challenged said jurors for that reason and his challenge for cause was by the court overruled. The bill of exceptions nowhere shows that defendant’s peremptory challenges were exhausted and it fails to show that an objectionable juror sat on the trial, of the case. This bill fails to show any error. Nairn v. State (Tex. Cr. App.) 45 S. W. 704; Mancillas v. State (Tex. Cr. App.) 76 S. W. 469.

Bill of exceptions No. £ complains at the court’s action in refusing to quash the writ of special venire, for the reason that the jurors were riot served in person, but were served by a postal card. This bill is qualified by the court with the statement that the whole venire was present upon the call of this case, except those who had been excused by counsel or by the court for legal reasons, or who had removed from the.county; there being, perhaps, two or three of the latter.

“The purpose of the personal summons is to procure the attendance of the jurors. When that is accomplished by an irregular summons,, the form of summons is not available as a ground for quashing the writ, unless some injury is shown.” Brown v. State, 87 Tex. Cr. R. 261, 222 S. W. 255, citing Whittington v. State, 86 Tex. Cr. R. 1, 215 S. W. 457. 12 American & English Encyclopedia of Pleading and Practice, p. 234.

There being no errors of procedure found in the record, and the evidence being sufficient to support the verdict, the judgment is in all things affirmed.

PER OURIAM. 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.

MORROW, P. J.

The correctness of the disposition of appellant’s complaint in bill of exceptions No. 1 is called ”in question. It is believed that, upon the reasons stated in the original opinion, the bill fails to show error. All that can be ascertained from the bill is that three of the veniremen declared on their voir dire that they had conscientious scruples against the infliction of the death penalty as a punishment for crime. The appellant’s challenge for cause was overruled, but he exercised peremptory challenges. In selecting the jury all of his peremptory challenges were exhausted. If the court’s ruling was wrong, thp facts stated in the bill would not require a reversal, for the reason that it is made apparent that the veniremen did not sit upon the jury. It does not áppear that any juror who was objectionable was impaneled. As we understand it, the precedents are to this effect: If it appears from the bill of. exceptions that a good challenge for cause of a -juror was erroneously overruled, the peremptory challenges of the appellant were exhausted, and an objectionable juror sat in the case, a reversal will be authorized. Rothschild v. State, 7 Tex. App.-540; Branch’s Ann. Tex. P. O. § 542, in which many cases are cited. Unless the bill shows that one or more the jurors who tried the case was an objectionable juror, the error of the court in overruling a challenge for cause made by the defendant will not work a reversal. Myers v. State, 7 Tex. App. 653; Loggins v. State, 12 Tex. App. 72; Burrell v. State, 18 Tex. 730; Villereal v. State (Tex. Cr. App.) 61 S. W. 716; Mays v. State, 50 Tex. Cr. R. 170, 96 S. W. 329; Hudson v. State, 28 Tex. App. 338, 13 S. W. 388; and other cases collated in Branch’s Ann. Tex. P. C. § 543.

We are not to be understood however, as intimating that the bill shows a good challenge for cause upon the part of the appellant. So far as we are aware, the exact question has never been presented to this court. We do find in other jurisdictions, however, with a statute like ours, that the possession of conscientious scruples against the infliction of the death penalty for crime is not available to the accused as a challenge for cause. See State v. Oompagnet, 48 La. Ann. .1470, 21 So. 46; 24 Oyc. of Law & Proc. p. 307, note 75.

The motion for rehearing is overruled. 
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