
    HAVARD v. STATE.
    (No. 3078.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.)
    1. Criminal Law (§ 598) — Continuance-Absence of Witnesses — Diligence.
    There is no error in refusing a continuance for absence of witnesses; the case having been long pending, it not appearing process had issued for them, and the court finding that diligence had not been used to secure their attendance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Criminal Law (§ 1166%) — Appeal-Harmless Eeeoe — Challenge to Juror.
    Prejudice from the serving of any juror not being shown, the overruling of a challenge for cause to a juror, who was subsequently peremptorily challenged and did not serve, presents no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-312.3; Dec. Dig. § 1166%.]
    3. Jury (§ 103) — Qualification—Opinion.
    Notwithstanding an opinion, one is a qualified juror; he stating his opinion was formed from hearsay, and not from discussion with any witness, and that he could and ,would entirely disregard it, and try the case as fairly and impartially as if he had heard nothing about it.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 444, 456, 460, 461-479, 497; Dee. Dig. § 103.]
    4. Criminal Law (§ 1124) — Appeal—Record — Review.
    The refusal of a motion for new trial on the ground of misqonduct of the jury cannot be reviewed; the evidence heard on the motion not being included in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-294S; Dec. Dig. § 11¿4.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Steve Havard was convicted of manslaughter, and appeals.
    Affirmed.
    Mantooth & Collins and E. B. Robb, all of Lufkin, for appellant. Beeman Strong, of Nacogdoches, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of manslaughter, and his punishment assessed at two years’ confinement in the state penitentiary. This is the second appeal in this case, the opinion on the former appeal being reported in 55 Tex. Cr. R. 213, 115 S. W. 1185, and we do not deem it necessary to again make a statement of the evidence.

In the first bill appellant complains of the action of the court in overruling his application for a continuance. In approving the bill the court states: “This bill of exception was presented to me on February 24, 1914, for my approval, and after being examined by me is approved with the following qualification: The indictment in this case was returned in the year 1907, and since the returning of the indictment the case has been tried four times, including this trial, and has been continued by agreement a number of times; and the state having contested the diligence as to the witnesses named in this bill of exception, I found upon examination of the record that the defendant had not used the “diligence required by law to secure the attendance of those witnesses.” The appellant accepts the bill as thus qualified. No process is attached to the motion for a continuance, and none included in the bill, and under such circumstances, the court finding that diligence had not been used to secure the attendance of the witnesses, the court did not err in overruling the application.

In the next bill it is contended that the court erred in not sustaining appellant’s challenge for cause as to Mr. Baird, who was on the jury panel. Appellant peremptorily challenged this juror, and he did not serve on the jury, and no sufiicient reason is stated why any man who served on the jury was prejudicial to appellant, and this bill for this reason presents no error. In addition, in approving the bill the court states: “This bill of exception was presented to me on the 24th day of February, 1914, for my approval, and after having been examined by me it is approved, with the following qualification: The juror T. B. Baird, in answer to questions propounded, stated that the opinion he had was formed from hearsay, and not from discussing the case with any witness or witnesses in the ease, and he stated that he could, and if taken upon the jury would, entirely disregard said opinion and try the case under the law and evidence, and that he felt no hesitancy in stating that he could try the case as fairly and impartially to both the state and the defendant as if he had heard nothing whatever about the case.” As thus qualified, Mr. Baird, under the Code, was a qualified juror.

In another bill it is shown that appellant contends that the court erred in not granting a new trial, on account of the misconduct of the jury. The court, in approving the bill, shows that he heard evidence on the motion for a new trial and overruled it. This evidence is not included in the bill, nor is it included in the record in any manner, shape, or form. Without the evidence it is impossible for us to tell whether or not the court erred in the premises. Patterson v. State, 63 Tex. Cr. R. 297, 140 S. W. 1128; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263; Vick v. State, 159 S. W. 56; Sharp v. State, 160 S. W. 369; Matthews v. State, 160 S. W. 1185, and cases cited. In addition to no evidence being included in the bill, we are inclined to the opinion that, in the ease of Arnwine v. State, 54 Tex. Cr. R. 213, 114 S. W. 796, had the evidence been included in the record, and it left questionable whether or not the affidavits attached to the motion presented the matter correctly, the law has been decided adversely to appellant’s contention, as he received the lowest penalty for manslaughter. Anyway, as the evidence is not included in the record, we cannot review the matter.

No objection was made to the charge, as given during the trial of the case, and none is made in the motion for new trial, other than that the court erred in failing to give some special charges requested by appellant. In so far as these charges are the law, the court’s charge fully covered same, and the judgment is affirmed.

DAVIDSON, J., absent at consultation.  