Compere v. State

The trial court overruled the appellant's challenge for cause of a member of the jury panel. He was excused upon the peremptory challenge of the appellant. We are not prepared to agree with the appellant's contention that the juror was properly subject to challenge for cause. If it be assumed, however, that the trial court erred in refusing to sustain the challenge for cause, this court is not authorized to and would not reverse the case for the error unless it inured to the injury of the appellant. The law allowed him three peremptory challenges. He used one of them in disposing of the juror mentioned. He had two peremptory challenges remaining, which he was privileged to use upon any person objectionable to him offered as a juror. The record fails to show that he used either of them, and also fails to show that any juror objectionable to him sat in the case. In a recent case it was said:

"The established rule appears to be that to secure a reversal by reason of an erroneous failure of the trial judge to sustain the challenge of veniremen for cause the bill of exceptions must show injury, and where the bill fails to show that the error resulted in forcing upon the jury, against appellant's will, an objectionable juror, it is insufficient to comply with the rule." Sanchez v. State, 236 S.W. 736, and authorities there cited.

The rule stated is well established and is deemed sound. It is in accord with the uniform practice of this court of refusing to reverse the case because of an error which could not and did not harm the accused.

Art. 5733 of the Civil Code, adopted in 1907, provides for the establishment and appointment of a Board of Medical Examiners, stating:

"Said board shall be appointed by the Governor of this state within ninety days after his inauguration, and the term of office of its members shall be two years or until their successors shall be appointed and qualified."

This provision of the statute, with a slight change of verbiage and no difference in meaning, was carried forward in the revision of 1925 in Art. 4495. In the final title of R. S., 1925, p. 2419, Sec. 2, the following language is used:

"Repealing Clause — That all civil statutes of a general nature, in force when the Revised Statutes take effect, and which are not included herein, or which are not hereby expressly continued in force, are hereby repealed."

If the position taken by the appellant's counsel is comprehended, it is that at 12 o'clock, meridian, September 1, 1925, Art. 5733 became extinct and was superseded by Art. 4495, supra, in which the appointment of a medical board was directed, and the Governor allowed ninety days after his inauguration within which to make the appointment, and that Art. 5733, having become defunct, the medical board appointed under that statute became likewise defunct, and until the appointment of a new board, as provided by Art. 4495, there was no provision by which the appellant could undergo a medical examination; that therefore the penal statute (Art. 739, P. C., 1925) under which he was convicted, required of him the impossible and was void. In the assumption that Art. 5733 was repealed and that the medical board appointed thereunder became defunct, we think the appellant is mistaken. The proper construction of the repealing clause is deemed that which would give effect to Art. 4495, as a continuation of Art. 5733, and that the two years' tenure of the Board of Medical Examiners appointed by virtue of that statute (Art. 5733) would not be interrupted. We will say, moreover, that the offense in the present case seems to have been committed on January 3, 1926, more than ninety days after September 1, 1925. The appellant does not aver in his motion that at the time the act upon which the prosecution is founded was done, a new Board of Medical Examiners had not been appointed, but even if the motion contained such an averment, no proof of it is discerned. The motion being a mere pleading, to give effect to its averment, upon appeal, proof of it would be essential.

Touching the other matters of which complaint is made in the motion, reference is made to the original opinion.

The motion for rehearing is overruled.

Overruled.