
    POWERS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 5, 1913.)
    1. Criminal Daw (§ 814) — Instructions— Applicability to Evidence.
    In a prosecution for the larceny of one head of cattle under an indictment charging theft from a certain person, where the hide of the animal found in the possession of a buyer from defendant had a certain brand, and there was testimony that such animal was sold by defendant to the possessor, and the owner positively identified the hide as that of one of the animals he lost, there was no error in refusing defendant’s requested charge that, if the jury believed the animal described in the indictment was one of those described in his bill of sale, defendant should be acquitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    2. Cbiminal Law (§ 923) — New Trial — Disqualified Juror — Waiver.
    Where facts, tending to show that one of the jurors had formed and expressed an opinion prior to the time he was accepted on the jury, were known to defendant’s counsel before his acceptance, it was too late to object to such juror on motion for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2225-2237; Dec. Dig. § 923.]
    3.Criminal Law (§ 857) — Deliberations op Jury — Reference to Defendant’s Failure to Testify.
    Where the fact that defendant had not testified was referred to by the jury after retirement and before verdict, but the foreman at once said that it could not be considered, such incidental reference to defendant’s failure to testify was not ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 2054, 2055; Dec.- Dig. § 857.]
    Appeal from District Court, Zavala County; R. H. Burney, Judge.
    B. C. Powers was convicted of theft, and he appeals.
    Affirmed.
    See, also, 152 S. W. 909.
    O. 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 prosecuted for the theft of one head of cattle, and his punishment assessed at two years’ confinement in the penitentiary; the punishment in this case being made cumulative of another conviction for theft had at a previous term of the court.

The testimony in this ease shows that the animal alleged to have been stolen was branded ; that state introduced a bill of sale from appellant to W. E. Moore to three head of cattle, the hill of sale showing the brand to be y. Mr. Moore was dead, but his son testified that appellant gave this bill to his father; that he helped hill one of the animals purchased by his father from appellant; and that the 'hide exhibited in evidence was the hide of the animal purchased by his father from appellant, and which he (the witness) assisted in killing. This hide was identified by the owner as the hide of one of the animals stolen from him. Under the circumstances, the court did not err in refusing the special charge requested by appellant that if the jury belieVed that the animal described in this indictment was one of the animals described in the bill of sale, to acquit the defendant. The indictment charged theft of an animal from Jno. S. Thompson; the hide of the animal found in Mr. Moore’s possession was branded and his son testified this animal was sold by appellant to his father; Mr. Thompson positively identifies this hide as the hide of one of the animals he lost.

Appellant moves for a new trial on the ground that one of the jurors, T. M. White, had formed and expressed an opinion prior to the time he was accepted on the jury. That he had said in the presence of two gentlemen “that he had heard all the evidence in the case, and that, under the evidence, the jury was bound to send him off.” -The state controverts this ground, and files an affidavit of Mr. White that he had never heard the testimony in this case against appellant, but he did hear the evidence in the other case against appellant, wherein he was charged with stealing another and different animal; and, if he made the remark alleged, he referred to the testimony in the other case against appellant. In addition to this, it is shown that, while the jury was being impaneled in the other case at the former trial, White was present and said, “I wish I could help cut that jury; I know I could cut one that would acquit him; and, if I could just get on it as a leader, you would have no trouble at all;” and then told the attorney who he thought would acquit the appellant in that case. These facts were communicated to appellant’s counsel prior to the time White was selected on the jury in this case, and, with the knowledge of these facts, he was accepted. Under such circumstances, it is too late to complain that this man was on the jury in the motion for new trial.

The only other ground in the motion shows that, after the jury retired, the fact that appellant had not testified was referred to, and this prior to the time the jury had arrived at a verdict. But it is" also shown that, when the matter was referred to, the foreman of the jury at once informed the jury that this could not be discussed nor considered by them, and there was no further reference to the matter. It has always been the rule in this court that a mere incidental reference to the failure of defendant to testify will not be cause for reversal of a case. In this case the evidence showing, beyond question, the guilt of appellant, and the jury assessing the lowest penalty, these grounds present no question for which we would feel called upon to reverse the case.

The judgment is affirmed.  