
    HUBERT v. STATE.
    (No. 4592.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.
    Rehearing Denied June 5, 1918.)
    Juby <&wkey;8&wkey;METHOD or Drawing.
    Where the officers, as prescribed by law, drew 150 jurors for a special venire, of whom the sheriff served 92, the others being out of the county or not found after diligent search, and none were excused before the case was called for trial, and only those having legal exemptions were excused after that, save those excused by consent of the parties, and no juror was forced upon defendant, who did not exhaust his challenges, there was no error.
    Appeal from Criminal District Court, Travis County; James it. Hamilton, Judge.
    Harvey Hubert was convicted of murder, and he appeals.
    Affirmed.
    [Warren W. Moore, W. J. Crider, and Jno. R. Cox, all of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PREN1DERGAST, J.

Appellant was convicted of the murder of a small 17 year old boy still wearing knee pants, and his punishment assessed at death. He contends the evidence did not justify the infliction of the death penalty. We have carefully read and studied the testimony. Appellant’s contention cannot be sustained. The evidence was amply sufficient to sustain the verdict and the penalty. We can see no useful purpose to be served in reciting the testimony. He was twice tried in the district court. Both juries assessed the death penalty.

The court below ordered a special venire of 150 jurors. The officers, as prescribed by law, drew from the wheel this number, and the writ was issued to summon them. The sheriff succeeded in serving only 92 of them. Because of this appellant made a motion to quash the venire, which was overruled. In approving the bill on this subject the court did so with this qualification:

“There was 92 jurors summoned, and those not summoned were returned by the sheriff as being out of the county or not found after due diligent search and inquiry. No jurors were excused by the court before the case was. called for trial, and the court only excused those from the special venire, after the case was called for trial, who had legal exemptions under the law; the balance of the jurors excused were excused by consent of the parties. No juror was forced upon the defendant, nor did defendant exhaust his challenge. The original venire was drawn from the jury wheel in a manner provided by law.”

This bill presents no error.

Appellant, in his motion for new trial, did not attack the verdict of the 'jury for anything that would have invalidated it, but sought to have the court to investigate from the jurors how and why they had assessed the death penalty. ' Notwithstanding the court properly held there was no such attack of the verdict of the jury as to require him to make any such investigation because the death penalty had been assessed, he permitted the appellant to introduce the jurors and others to testify on the subject. None of the testimony in ,th©' slightest way tended to show any improper action by the jury.

As stated, we have carefully read this record. Without doubt it shows that appellant had a fair and impartial trial in every particular. The evidence was amply sufficient to sustain the verdict.

We cannot do otherwise than affirm the judgment, which is hereby ordered.  