
    BARTLETT v. STATE.
    (No. 4807.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.
    Rehearing Denied Feb. 13, 1918.)
    1. Criminal Law <@=>1091(7) — Appeal—Bill of Exceptions — Examination op Jurors.
    Bill of exceptions to refusal to allow certain questions to a juror on his voir dire examination is inoperative; it not showing he served.
    2. Criminal Law <@=>1091(7) — Appeai>-Bill op Exceptions — Examination op Jurors.
    Bill of exceptions to exclusion of question to veniremen not showing it would have elicited an answer disqualifying them, is insufficient.
    3. Jury <@=ol05(2) — Challenge for Cause-Prejudice.
    Prejudice against the offense with which defendant is charged is not bias or prejudice against him, by Vernon’s Code Cr. Proc. 1916, art. 692, subd. 12, made ground of challenge for cause.
    4. Jury <@=>103(3) — Competency— Opinion— Discretion of Court.
    Under Vernon’s Code Cr. Proc. 1916, art. 692, subd. 13, if a juror declares on His voir dire that he has an opinion which will not affect his verdict, the court has largo judicial discretion to declare him competent.
    5. Criminal Law <@=>1087(2) — Appeal—Bill of Exceptions — Showing Piling.
    A bill of exception in the record cannot be considered; there being a failure to show its filing.
    Appeal from Baylor County Court; Nat G. Mitchell, Judge.
    Comer Bartlett was convicted, and appeals.
    Affirmed.
    J. S. Kendall, of Seymour, for appellant. B. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the theft of two turkeys. The state relied upon the testimony of an accomplice whose evidence was sufficiently corroborated. Appellant denied the theft and introduced evidence tending to establish an alibi. The issues were submitted to the jury in a charge which is not complained of.

Bill of exception No. 1 complains of the refusal of the court to permit appellant, upon the examination of the juror Parker, on his voir dire, to ask the following question:

“If in the trial of this case it should develop that the state relies for conviction upon the testimony of an accomplice, would you convict the defendant solely upon the testimony of the accomplice?”

In allowing the bill the court qualified it with the statement that each juror, responding to the question by the court, stated that he would decide the case according to the law as given in the charge by the court in regard to the testimony of an accomplice, as well as to all other testimony. It is not disclosed by the bill that Parker was on the jury that tried the case. This renders the bill inoperative to show error even if the court was in error in refusing to permit the inquiry, and this, we think, the bill as qualified does not show. Kramer v. State, 34 Tex. Cr. R. 84, 29 S. W. 157; Segars v. State, 35 Tex. Cr. R. 45, 31 S. W. 370; Jones v. State, 37 Tex. Cr. R. 433, 35 S. W. 975; Jordan v. State, 37 Tex. Cr. R. 224, 38 S. W. 780, 39 S. W. 111; Stevens v. State, 68 Tex. Cr. R. 282, 150 S. W. 944; Poulter v. State, 70 Tex. Cr. R. 197, 157 S. W. 166; Collins v. State, 77 Tex. Cr. R. 156, 178 S. W. 350; Barnes v. State, 74 Tex. Cr. R. 501, 168 S. W. 858.

Bill No. 3 reiterates the subject-matter of bill No. 1, supra, and states that counsel proposed, and was refused permission, to ask each of the jurors the same question, and that on motion for new trial this action was complained of, and, in connection therewith, after exhausting his peremptory challenges he was “compelled to accept the juror Francis,” who was objectionable to the defendant for the reason that upon his voir dire he had stated that the filing of a complaint created in his mind an evidence of guilt. Qualifying this bill, the court says that each of the jurors on their voir dire stated that they would decide the ease according to the law as given in the court’s charge in regard to the testimony of the accomplice, as well as to all other matters of evidence; and that the juror Francis stated that an indictment for chicken theft would prejudice him to some extent against a person so charged, but that if selected as a juror he could and would lay aside any prejudice he might have and would try the case solely according to the law as given in charge by the court, and the evidence submitted under the rulings. The bill fails to show that the question to the juror Parker, and the proposed inquiry of the other jurors, would have elicited an answer disqualifying them or rendering them objectionable to appellant, and in this respect is incomplete. Caton v. State, 66 Tex. Cr. R. 473, 147 S. W. 590. We are unable to determine from this bill that the juror Francis was challenged for cause. It does state that he was objectionable and was forced on appellant. An objectionable juror is one who has formed some opinion as to the guilt or innocence of the accused. Keaton v. State, 40 Tex. Cr. R. 145, 49 S. W. 90; Connell v. State, 45 Tex. Cr. R. 153, 75 S. W. 512. From the bill as qualified, we infer that the mental attitude of the juror Francis was, not that he had formed an opinion as to the guilt or innocence of the appellant, but rather that such prejudice as he had was against the offense with which appellant was charged. The statute (article 692, C. C. P., subds. 12 and 13) deals with bias or prejudice. None of the subdivisions of this statute mention in terms the adverse feeling pro-dueed by knowledge of the indictment. The indictment is not evidence of guilt, and the court is required to charge the jury on a presumption of innocence and the necessity of proof of guilt beyond a reasonable doubt. This was done in the instant case, and the juror introduced stated that he would be governed by the charge. It has been held that, while the statute makes the fact that one has been a member of the grand jury a ground for challenge, it is not available to set aside the verdict where challenge was not made. See Vernon’s O. O. P. art. 692, and notes under subdivision 7, p. 372. The bias or prejudice referred to in subdivision 12 of the statute is against the person of the accused or against his case. See notes, Vernon’s C. C. P. pp. 373, 374. Subdivision 13 of the statute provides that where a juror on his voir dire states that he has an opinion which will influence his verdict, he should be discharged, and in effect that, if he declares that he has an opinion which will not affect his verdict, the court has judicial discretion to declare him competent. This discretion, as it formerly existed, was enlarged by the act of 1885, p. 90, Vernon’s C. C. P. p. 375. We are of opinion that the bill does not show an abuse of this discretion. The juror does not appear to have been disqualified under the statute. Pierson v. State, 21 Tex. App. 14, 17 S. W. 468; McKinney v. State, 31 Tex. Cr. R. 583, 21 S. W. 683; Gaines v. State, 37 S. W. 331; Myers v. State, 77 Tex. Cr. R. 239, 177 S. W. 1167. Not being a disqualified juror, and the bill failing to show that any objection was made to him at the time of his selection, nor that the exhaustion of peremptory challenges on other veniremen was due to any illegal action of the court, we would not be authorized to reverse upon the facts disclosed. Caton v. State, 66 Tex. Cr. R. 473, 147 S. W. 590; Martinez v. State, 57 S. W. 839; Keeper v. State, 29 Tex. App. 63, 14 S. W. 398; Williamson v. State, 36 Tex. Cr. R. 226, 36 S. W. 444; Mays v. State, 36 Tex. Cr. R. 437; Williams v. State, 60 Tex. Cr. R. 453, 132 S. W. 345.

The Assistant Attorney General has filed a motion to strike out bill of exception No. 2, which is copied in the record, in which there is failure to show its filing. We cannot consider the bill.

Rinding no reversible error in the record, the judgment of the lower court is affirmed. 
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