[No. 1603.]

#### A. J. Sewell *v.*The State.

1. Corstitutiohal Law-Terms oe Courtv Courts.—The amendment adopted in 1888 to the clause of the Constitution regulating the terms of the county c urts did not take effect immediatel / upon receiving a malí cri y of votes cast at the authorized election, and could not have become *57operative until after the lapse of forty days from the election, when the returns were legally canvassed. See the opinion *in extenso*on the question.

8. Practice—Evidence.—The agreed sta ement of facts recites: “It is admitted that the evidence is sufficient to support the finding of the jury as to the identity of the defendant as the party who entered the room of Miss Trotman and did the acts testified to by her.” *Held,*that such an agreement obviates, on appeal, the necessity of other evidence of identity.

3. Same—Charg-e oe the Court.—It was not error to refuse special charges requested when they were on the weight of evidence, nor when their substance was embraced in the general charge.

4. Same.—Objectional charges in misdemeanor cases, if not excepted to and sought to be cured by counter-charges, are not reversible error, unless palpably and radically wrong.

■6. Same—Jury Law—New Trial.—See the opinion *in extenso*for circumstances under which a new trial should have been granted the defendant, because, despite the counter affidavit of the impugned juror, he was shown to have been prejudiced against the defendant when he was impaneled upon the jury.

•6. Same.—That a proposed juror is under indictment or other legal accusation of theft or any felony is, by subdivision 4 of Article 636 of the Code of Criminal Procedure, made an imperative disqualification. But, *held,*that under Article 639 of said Code, this ground of challenge, when sought to be availed of by either party, must be sustained by evidence *aliunde*the *voir dire*examination of the proposed juror. *Quaere,*whether, under the circumstances of this case, this question could be raised for the first time in the motion for new trial?

Appeal from the County Court of Navarro. Tried below before the Hon. R. C. Beale, County Judge.

The indictment, transferred from the District Court,, charged the appellant with an aggravated assault and battery upon the person of L. J. Trotman, a female, in Navarro county, Texas, •on the eleventh day of May, 1883. A fine of four hundred dollars was the penalty inflicted by a verdict of guilty.

Miss L. J. Trotman testified, for the State, that in May, 1883, she lived at the house of the defendant, who kept a boarding •establishment at Blooming Grove, Navarro county, Texas. She was supporting herself by doing sewing and other house work for the defendant’s wife. The room of the witness was across the hall from the room occupied by the defendant and his wife. The witness sat up late on the night of May 11, 1883, sewing, and when she went to retire she found her room key gone from the lock. The family of the defendant had then retired, and the *58witness did not wake them up, but, thinking that no one save herself knew that the key was missing, she drew a chair against the door and retired to bed. While dozing, and before she got asleep, she heard a noise which she took to be the slipping of a window. She next heard her name, Lorena, called in a half whisper by some one who was bending over her. Her first thought was that Mrs. Sewell was the party calling, but, on throwing up her hands, they came in contact‘with those of another. She caught the beard of a man and commenced screaming, when the man pulled loose, ran from her room, and turned towards the room of the defendant. Witness ^sprang up, ran into Mrs. Sewell’s room, and told her that she, the witness, was frightened—that a man had invaded her room. Mrs. Sewell spoke first, and the defendant afterwards, one of them saying that it was nothing more than a dream or nightmare. Witness replied that it was certainly a man, as she still had some of his hair in her hand. Defendant got up, came to the witness, and asked to be shown the hair. He took the hair, when Mrs. Sew-ell said to him: “Hammy, light the lamp.” He went to the mantel piece, fumbled a while, appeared much excited, and finally replied that the lamp contained no oil. Witness went into her own room for a lamp, and, as she returned with it to to defendant’s room, the defendant went out at the front door. He returned to the room after a very short time, and, to Mrs. Sewell’s request to see the hair, replied that he had lost it. He found a little of it, and, as he held it close to his face examining, it, the witness remarked mentally, “'that is your beard.” The witness did not then say who she thought the intruder upon her privacy was. She recognized the defendant’s voice in her room. In his own room aftérwards the defendant spoke like a man who had been awake, and Mrs. Sewell like a woman who had been asleep.

. Mrs. Sewell advised that so much of the whiskers as were retained by the defendant be carefully preserved, and the witness took them and kept them. Being told to return to bed, the witness refused to sleep in that room alone, and, in charge of Mrs. Sewell, went to the room of Mrs. Sewell’s sister,’ where she remained all night. This was at about eleven o’clock at night. The man who entered the witness’s room was barefooted, and, the witness believed, in his night clothes. He had on a white shirt. The witness’s door was open when she ran out of her room; that of the defendant was closed but not locked, as it cus*59tomarily was at night. The defendant was in bed, on the front side. When the witness went to sweep next morning, she found some beard scattered about the floor near the head of the defendant’s bed. Another bunch was found.in the fireplace, under the mantel piece, where he went to light the lamp. A bunch was. also found next morning by the side of the walk leading to the front gate. The witness told no one next morning who she-thought the intruder was, as she had no other home to go to, nor no one to appeal to for shelter or protection. She had been in Texas but a short time, coming from Georgia, where the defendant had known her people. The witness had been at the defendant’s house about four months, and had, up to this time, re-, ceived nothing but great kindness from the defendant and his wife.

Mrs. Henry was the first person the witness told that she thought she knew who the man was. In a conversation with Mr. Jack, she said that she thought she knew the man, and that he was an inmate of the house. He asked if it was Mr. Henry, and the witness replied “no.” He then named all of the gentlemen boarders consecutively; to each of which she gave a negative answer, and when he finally named the defendant, the witness declined to answer. This conversation was on Saturday,, the day after the assault. Several parties on that day engaged in looking for tracks in the front yard, but found none, so far as. the witness knew. The witness did not join in the search, or say to any of the various parties who questioned her that she thought she knew her assailant. On Sunday she went home with Mrs. Palmer.

Mr. and Mrs. Henry and Mr. and Mrs. Leftwich testified, for the State, that they were awakened by- the screams of Miss Trotman, the alleged assaulted party; and Mr. and Mrs. Leftwich, who lived across the street in front of defendant’s, house, added that they went to their window or gallery facing defendant’s front door and gate, before the screaming ceased, and saw no one go out of the defendant’s door or gate.

The record recites: “Other witnesses were examined as to comparison of beard, and, without giving further of the testimony upon the proof of identity, it is admitted that the evidence-is sufficient to support the finding of the jury as to the identity of the defendant as the party who entered the room of Miss Trotman and did the acts testified to by her.”

Mrs. Sewell testified, for the defense, that she was asleep. *60when Miss Trotman came into her room. About the first thing Miss Trotman said, was that she was scared, and that a man had been in her room. When the witness and Miss Trotman went into the latter’s room for a lamp, Miss Trotman showed her the prints of a man’s hand on the bed where she had been sleeping. The defendant was in bed with the witness when witness awoke. The witness spoke first to Miss Trotman.

Doctor Thomas Sewell, and various other witnesses who claimed to have talked to Miss Trotman, after the occurrence, testified that Miss Trotman told them that she did not recognize the man’s voice, nor did she know who the man was who .entered her room.

The defense, in a motion for new trial, raised the questions involved in the rulings of this court.

*Frost, Barry & Lee,,*for the appellant.

*J. H. Burts,*Assistant Attorney General, for the State.

White, Presiding Judge.

It is assigned as error, and the same point is made in the brief of counsel for appellant, that the County Court which tried the case was held without authority of law. Amongst the amendments to the Constitution, submitted to a popular vote, under Joint Resolution of the Eighteenth Legislature, was one “proposing an amendment to Article 5 of the State Constitution, diminishing the number of terms of the County Courts,” and declaring that “ until otherwise provided, the terms of the County Court shall be held on the first Mondays in February, May, August and November, and may remain in session three weeks.” (Joint Resolution No. 6, Gen. Laws Eighteenth Leg., p. 134.)

These proposed amendments were voted upon and, as afterward appeared upon a count of the vote, were adopted by the people at an election held in conformity with a proclamation of the Governor (authorized and required by Joint Resolution No. 8, Gen. Laws, p. 136), on the seventh day of August, 1883. No provision having been made as to the mode and manner of the returns of the votes at said election, by provision of Article 1759, Revised Statutes, the rules prescribed in the general election law of the State are made applicable “to all elections, whether for officers or for other purposes.” By this general law it is provided, in Article 1710, that “on the fortieth day after *61the election, the day of election excluded, and not before, the Secretary of State, in the presence of the Governor and Attorney General, or in case of vacancy in either of said offices, or-of inability or failure of either of said officers to act, then in presence of either one of them, shall open and count the returns of elections.” And by Article 17 of the Constitution, declaring the mode of amending the same, it is provided that “if it shall appear from said returns that a majority of the votes cast have been cast in favon of any amendment, the said amendment so, receiving a majority of the votes cast shall become a part of' the Constitution, and proclamation shall be made by the Governor thereof.”

This case we are considering was tried in the County Court on the eighth day of September, 1883, after the amendment had been voted upon, but before the election returns were or could be counted and the result of the election be officially and legally known. Did the fact that a majority vote had been cast in favor of the amendment make it a part of the Constitution, and give it operative force from the seventh of August, 1883, the day of election, or did it take effect and become operative only after the returns were counted on the fortieth day after election? It is unnecessary for us in this case to decide whether, under the provisions above quoted from Article 17, *supra,*after the counting of the vote or returns has established the fact that it has been carried, an amendment *eo instanti*becomes operative, or whether it derives its operative force from the Governor’s proclamation declaring the fact of its adoption. We are clearly of opinion, however, that until after the expiration of forty days from the election, under our general election laws, the amendment, until the returns are opened and counted by the Secretary of State, can in no manner be considered as operative so as to affect, modify, change or nullify existing laws. Such being the case, the amendment in question, though a majority vote had been cast for it, was not in operative force as part of the law of the State when the court trying this case was being held under provisions of law still in force. Our opinion is that the term of the court was a legal one, and that the objection to its lawful authority is not maintainable.

Proof of defendant’s identity as the party who committed the acts charged in the indictment, independent of any evidence upon the point, is obviated in the agreed statement of facts, where we find that “ it is admitted that the evidence is sufficient *62to support the finding of the jury as to the identity of the defendant as the party who entered the room of Miss Trotman, and did the acts testified to by her.” This admission also obviates some of the objections urged to the rulings of the court upon defend-1 ant’s special instructions.

Of the specially requested instructions, outside the question of identity, the first was objectionable as being upon the weight of evidence; the second was substantially given in the general ■charge; and the third was given as asked, without modification. There was no' exception taken to the general charge. The case being a misdemeanor, an objectionable charge not excepted to and sought to be cured by appropriate counter charges is not reversable error, short of its being palpably and radically wrong. But, aside from these rules of practice, now well settled, we see no tenable objection to the charge. It presented the law concisely and with sufficient clearness upon the issues involved. Without further discussion, this disposes of the propositions and arguments of appellant’s counsel based upon supposed errors in the charge.

It was made one of the grounds of the motion for a new trial that A. J. Bell, one of the jurors who sat upon the jury which tried and returned the verdict in the case, was biased and prejudiced against the defendant, and that defendant was not informed of the fact until after the jury had retired to consider ■of their findings, the said juror having denied all bias and prejudice when examined on his *voir dire*before taken on the panel. That, about two months before the trial, said Bell had ■declared to one. Kendall that he was satisfied appellant Sewell was guilty, “ and that if he, the said Bell, should be on the jury which should try the defendant, he would inflict upon defendant the highest penalty allowed by the law.” W. D. Kendall and T. M. Skiles make affidavit in support of defendant’s affidavits as to these declarations of the juror Bell. In Bell’s counter affidavit he. admits making the declarations, but says that he had, up to the time they were made, conversed with none of the witnesses, and based his declarations solely upon the hypothesis that defendant was guilty of an assault with intent to commit rape. His affidavit shows that if he did not, as is charged against him, champion the cause of the State against the defendant in the jury room, he did vote for and try to inflict upon defendant the highest penalty which could be imposed under the law for aggravated assault and battery, viz., one thousand *63dollars and two years imprisonment in the county jail. To this extent at least his affidavit supports the declarations made by him.

We are of opinion the facts show the juror was prejudiced, and that a new trial should have been granted on this ground. *(Hanks*v. *The State,*21 Texas, 526; *Henrie*v. *The State,*41 Texas, 573.)

Another objection urged to the competency of the juror Bell was that, at the time said cause was tried, and the juror was one of the panel trying the case, there was pending against the •said A. J. Bell, in the District Court of Navarro county, an indictment for felony, to wit, for swindling.

It is by the Code made a ground of disqualification of a juror “that he is under indictment or other legal accusation for theft or any felony.” (Code Crim. Proc., Art. 636, subdivision 4.)

But whilst this is a ground of disqualification, the statute expressly provides, in Article 638, that in examining a juror (as to his qualifications) he shall not be asked a question, the answer to which may show that he has been convicted of an offense which disqualifies him, or that he stands charged by indictment or other legal accusation with theft or felony.” Article 639 provides that “No juror shall be impaneled when it appears that he is subject either to the third, fourth or fifth clause of challenge in Article 636, although both parties may consent.” In the opposition of the district attorney to this ground of the motion, he states that John D. Lee, one of defendant’s counsel, knew of the pendency of the indictment for swindling against the juror Bell, before and at the time the juror was placed upon the panel. If this were so, the attorney’s knowledge would, in such case, be hardly binding upon defendant, and neither the counsel nor defendant himself, if he knew the fact of disqualification, could waive it, and consent that the juror was, or should be, held competent to act. (Article 639, *supra.)*We are of opinion that the statute intends that this ground of challenge, when sought to be availed of by either party, must be sustained by evidence *aliunde*the *voir dire*examination of the proposed juror. Suffice it to say, that no evidence was introduced, or proposed to be introduced, by defendant in support of this ground of the motion for a new trial. Whether the question could be raised for the first time on motion for new trial, under the circumstances of this case, it is unnecessary for us to decide. (See *Roseborough*v. *The State,*43 Texas, 570; *O’Meally*v. *The State,*1 Texas Ct. *64App., 180; *Lester*v. *The*State, 2 Texas Ct. App., 432; *Hanks*v. *The State,*21 Texas, 526; *Henrie*v. *The State,*41 Texas, 573; *Armendares*v. *The State,*10 Texas Ct. App., 44.)

Opinion delivered November 14, 1883.

Because the court erred in refusing a new trial, based upon the prejudice of the juror A. J. Bell, the judgment is reversed and the cause remanded.

*Reversed and remanded.*