
    HAYS v. STATE.
    (No. 5045.)
    (Court of Criminal Appeals of Texas.
    May 22, 1918.
    Rehearing Denied June 12, 1918.)
    1. Intoxicating Liquors <&wkey;236(15) — Offense — Evidence — Identity of Defendant.
    In a prosecution for a violation of the local option law, evidence held sufficient to identify defendant as the party who sold beer to the alleged purchaser.
    2. Criminal Law <&wkey;742(3) — Impeaching Evidence — Question for Jury.
    The effect of impeaching evidence is for the jury.
    3. Criminal Law &wkey;»940 — New Trial — Newly Discovered Evidence — Hearsay.
    Where an affidavit attached to a motion for a new trial, and setting up alleged newly discovered evidence, was to the effect that defendant had been informed by unnamed parties that the state’s witnesses and other parties whom affiant did not remember had been paid $50 apiece to send unidentified whisky peddlers to the penitentiary, the alleged newly discovered evidence was hearsay.
    4. Criminal Law <&wkey;958(6) — New Trial — Newly Discovered Evidence — Sufficiency of Motion.
    A motion for new trial, with an affidavit that defendant had been informed that the state’s witnesses and other parties whom he did not remember had been paid $50 apiece to send unidentified whisky peddlers to the penitentiary, not naming any parties by whom such facts could be proved or indicate, except by hearsay, that the state’s witnesses had any interest in the eases, or that defendant was involved in any of them, was too indefinite for consideration, and not within any rule authorizing a new trial for newly discovered evidence.
    On Motion for Rehearing.
    5. Criminal Law <&wkey;1092(4) — Appeal—Bill of Exceptions.
    All errors with reference to impaneling the jury, and which are relied upon, must be reserved by bill of exceptions at the time of impaneling the jury, and, if not so reserved, there must be something shown in the record excusing such diligence on the part of the complaining party, and a mere statement connected with a ground of the motion for a new trial would not-be sufficient.
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Perry Hays was convicted of violating the local option law and he appeals.
    Affirmed.
    I. N. Williams, of Mt. Pleasant, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, his punishment being assessed at two years’ confinement in the penitentiary.

The main issue presented for revision is the want of sufficient evidence to support the finding of the jury. The case was investigated very fully So far as the facts were concerned. The basis of this contention is that there was a want of evidence to identify the defendant as the party who sold beer to the alleged purchaser. The evidence of the alleged purchaser is not satisfactory as to the identity of appellant. They were strangers, and had never met before. It is shown that Wilder and some of his friends went into a café, and Wilder ordered meals for himself and friends. They then went into a rear room or apartment and drank four bottles of beer, for which they paid 50 cents a bottle. Wilder was not willing to swear definitely that appellant was the man who soffi him the beer. He was of the impression, however, that appellant was the man, and, among other things, mentioned the fact that one of his eyes was defective. Another one of the dining party testified that appellant was the man and identified him with reasonable accuracy. Appellant denied being the selling party. Under this state of the record this court would hardly feel justified in holding that the evidence was not sufficient to identify appellant.

There is evidence also by the appellant, from two witnesses as well as himself, to the effect that after he was indicted he went to see Wilder and the other witnesses at Wilder’s music store. What occurred between the parties at the time was a matter of contradiction between them. This evidence was introduced by appellant for the purpose of weakening the testimony of the state’s witnesses, and to contradict them about matters that occurred between them at the music store and as to what was said. The jury had the right to decide this question. It was impeaching evidence introduced by the defendant.

There was a motion made for new trial, to which was attached an affidavit setting up newly discovered testimony. The affidavit sets out no facts that would be in-troducible were he on the witness stand. It was to the effect that he had been informed and told by parties that Wilder and McBrayer, the other state’s witness, and other parties whom affiant did not remember, had paid $50 apiece to send some whisky peddlers to the penitentiary from Mt. Pleasant, at the January term, 1918, of the district court; that in the Rugby neighborhood and at Umphries’ residence, where McBrayer had been working, and while affiant was at the residence of Jack Winters and near his place, he was informed by several men that McBrayer had told them that he was getting $50, and that Wilder and some other witness whose name he did not remember were each getting $50 to send three whisky ped: dlers to the penitentiary from Mt. Pleasant. McBrayer did not talk to affiant at any time about these cases, or about the foregoing matter, but affiant was working in that neighborhood about the time that McBrayer was in these counties, and affiant repeatedly heard the statements in substance and words as above stated. This was hearsay. No parties were named by whom these facts could be proved, and there is nothing to indicate, except hearsay, that Wilder or Mc-Brayer had any interest in these cases, or that defendant was involved in any of them. Who the three whisky peddlers referred to were is not stated, nor the names of the witnesses. This is too indefinite for consideration, and is not brought within any rule authorizing a new trial on newly discovered testimony.

The judgment will therefore be affirmed.

On Motion for Rehearing.

On a former day of this term this judgment was affirmed. In motion for rehearing appellant complains that the court did not notice one of his grounds of the motion for new trial. 'With reference to that ground it was alleged that the state used 11 challenges instead of 10, and that this fact was not discovered until after the case had gone to the jury. Attached to this ground of the motion is what is termed “Exhibit B,” which contains three lists of jurors from which the jury was selected. These lists show that the names of 'll jurors were scratched by the state and 10 by the defendant. There is no bill of exceptions reserved, and no testimony introduced to verify this in any way, neither as having been the list used by the respective parties in this case or that in fact they were correct. It was simply alleged as a ground of the motion, with no facts to verify and no evidence introduced in connection- with the matter. We are of opinion this does not sufficiently present this matter for consideration. The usual rule is that all errors with reference to impaneling the jury relied upon must be reserved by bill of exceptions at the time of impaneling the jury; and, if this rule is not followed, then there must be something shown in the record excusing such diligence on the part of the complaining party. A mere statement connected with the ground of the motion would not be sufficient. Appellant refers to the case of Hill v. State, 10 Tex. App. 618, and subsequent cases approving the decision in that ease. There is no question of the correctness of that decision, but it seems to have no application to this case. Hill was on trial before a special venire for murder. Eight jurors had been selected, and, over objection of appellant, at that stage of the trial, one of the jurors was excused by the court because the juror said his family was sick. This was done over Hill’s objection. We are of opinion the opinion was correctly rendered, but it has no application here. As this matter presents itself, we do not think it should be considered by the court.

The motion for rehearing is overruled. 
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