Stillwell v. State

Offense, manslaughter, punishment two years confinement in the penitentiary.

A former appeal Of this case is reported in 283 S.W. 840, where enough of the facts are stated to illustrate the points involved in this appeal.

By bills of exception Nos. 1, 2 and 3 complaint is made of the action of the court in overruling appellant's challenge for cause to three of the jurors in the panel. Neither of the first two of these jurors appear to have been forced on appellant. The court qualifies bill No. 3 pertaining to third juror as follows: "After counsel for defendant had exhausted his fifteen peremptory challenges, the court informed him that he would allow him two additional challenges, and counsel for defendant was allowed seventeen peremptory challenges." It is not clearly shown that appellant hadn't these extra challenges unused when the third undesirable juror was taken. Under these circumstances there could have been no error in the court's action.

Where the bill of exception fails to show defendant exhausted his peremptory challenges, the alleged error in overruling his challenge to an objectionable juror cannot be revised on appeal. Tuttle v. State, 6 Tex.Crim. App. 560. Branch's P. C., p. 278, Mr. Branch states the rule as follows:

"A judgment of conviction will be reversed on appeal if it is shown by a proper bill of exceptions (1) that a good challenge for cause to a juror was erroneously overruled by the trial court, (2) that defendant exhausted his peremptory challenges, and (3) that one or more objectionable jurors sat in the case." Branch's P. C., Sec. 542.

Under this rule none of appellant's bills show error.

Complaint is made because the court in his charge failed to present the issue of justifiable homicide under the statute when committed by the husband upon the person of anyone taken in the act of adultery with his wife. This same question was before the court on a former appeal and we see no reason for changing the former ruling of this court thereon. The evidence does not appear to be materially different and in our opinion does not raise the issue.

Complaint is made in bills of exception Nos. 4, 5, and 7, the substance of which is that the court was in error in refusing to permit appellant to prove that Zeddie Jones and one Sam Jones, both material witnesses for the state, were living in adultery at the time of and prior to the killing in question. They were at the time of the trial husband and wife. No legal accusation of any kind is shown to have ever been filed against these parties and the court was correct in refusing to admit the evidence. "Proof or mere accusations against, or evidence of particular acts of misconduct is not admissible to affect the credibility of a witness." Branch's P. C., Sec. 168.

Finding no error in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.