Garrett v. State

In his motion for rehearing appellant insists that we erred in holding that the trial court committed no error in refusing to grant him a new trial because of the alleged disqualification of the juror Baag. We disposed of this matter correctly we think in the original opinion on the ground that the bill of exceptions attempted to present matters of fact adduced before the court upon the hearing of the motion for new trial, and said bill of exceptions was not approved during term time. In addition to said ground, the case might have been further decided upon the proposition that if it be granted that said juror was disqualified, no examination was made of him by appellant upon his voir dire. In such case this court has held where the accused asks no questions, and makes no examination of the juror upon hisvoir dire, that he waives any such objection. In Templeton v. State, 57 S.W. Rep., 831, the same ground of disqualification of the juror was urged as is here insisted upon, that is that said juror was related to the injured party within the third degree and that the relationship was not known to the accused until after the trial. This court said in its opinion: "If appellant accepted the juror with knowledge of such relationship, or if he accepted him without inquiring in regard thereto, he could not be heard to complain. The affidavits do not disclose that he made any effort to ascertain any relationship of the juror to the prosecuting witness. Failing to make inquiry in reference to this matter, it is too late after verdict to go into the question in order to show relationship."

A number of authorities are cited in support of this proposition.

The motion for rehearing will be overruled.

Overruled.