MORROW, Presiding Judge.
By indictment in the District Court of Wood County it was charged that the appellant “did unlawfully and willfully displace and interfere with a switch upon the track of a railroad,” etc. The jury assessed against him a punishment of confinement in the penitentiary for a period of seven years.
On a former trial in the District Court of Wood County the appellant, on an indictment in two counts, was convicted with a penalty of confinement in the penitentiary for ninety-nine years assessed against him. Upon that trial each of the counts contained the language above quoted, each of the counts
charging,
however, that as a result of the unlawful act the death of Charlie Cox resulted. The first count charged that the death was brought about by the appellant’s act upon malice aforethought — that is, it contained the averments appropriate to a charge of murder. On the trial that count was abandoned. On appeal the judgment was reversed for the reason that upon the count in the indictment upon which the accused was convicted, the maximum penalty allowed by law was confinement in the penitentiary for a period of seven years. After the reversal, the indictment upon which this conviction is founded was returned. The indictment is in substance the same as that upon which the accused was formerly convicted save that in the present indictment the reference to the death of Charlie Cox is omitted. After the second indictment (the one upon which the present conviction is had) was returned, the case was transferred by change of venue to the District Court of Rains County, where the trial at present under consideration took place.
By a plea of former jeopardy appellant asserts that his first trial resulted in an acquittal — that is, that his acquittal of murder operated to exculpate him from prosecution for the criminal act which resulted in the death of the person named in the count in the first indictment, which charged him with murder. The position is not tenable. On the trial from which this appeal is taken, appellant was convicted of the commission of the offense charged in the second count of the former indictment. The state having a right to prosecute him for the offense charged in that count, was privileged to exercise the fight either upon the old indictment or upon a new one filed at the time when the offense charged was not barred by the statute of limitations.
The statute reads thus:
“If any person shall willfully place any obstruction upon the track of any railroad, or remove any rail therefrom, or displace or interfere with any switch thereof, or in any way injure such road, or do any damage to any railroad, locomotive, tender, or car whereby the life of any person might be endangered, he shall be confined in the penitentiary not less than two nor more than seven years. If the life of any person is lost by such act the offender is guilty of murder.” (Art. 1335, P. C., 1925.)
Upon mature deliberation, this court, upon the former appeal, reached the conclusion that the statute quoted denounces two offenses, namely, (a) that of willfully obstructing a railroad track; and (b) with malice aforethought, by causing the déath
of an individual by willfully obstructing a railroad track. As stated above, on the former trial the offense of murder was charged, but was abandoned. In the second count the present offense was charged, which resulted in a conviction and the granting of a new trial by reversal upon appeal. See Johnson v. State, 97 Tex. Crim. Rep. 658. In reaching the conclusion that the plea of former jeopardy is not available upon the facts stated against the present conviction, what is understood to be a. rule of practice established by statute and judicial construction of long standing in this state is observed. “The effect of a new trial is to place the. cause in the same position in which it was before any trial had taken place.” Art. 759, C. C. P., 1925. The effect follows whether a new trial is given in the. trial court or upon appeal. See Cox v. State, 7 Tex. Crim. App. 495. In Art. 417, C. C. P., the use of separate counts in an indictment is sanctioned and the declaration is made that if the indictment be good in either of the counts it is sufficient. Art. 8, C. C. P., declares that one shall not twice be put in jeopardy of life or liberty for the same offense. Each of the statutes mentioned has received judicial interpretation as is illustrated by many decisions which are collated in Vernon’s Ann. Tex. C. C. P., under the several articles of the statutes mentioned. In number, the cases are too many for review. As we understand them, however, they, with uniformity, support the conclusion announced above, namely, that the law against double jeopardy is not offended in the present conviction. We refer to Mizell v. State, 83 Tex. Crim. Rep. 305; Stewart v. State, 35 Tex. Crim. Rep. 175. In the latter case, Stewart was indicted for rape and incest, each growing out of the same transaction. He was acquitted of rape and against his trial for incest he interposed his prior acquittal of the offense of rape. The rejection of the plea by the trial court was upheld upon appeal. Many other illustrations might be given in the cases collated under the articles of the statute mentioned.
By way of plea to the jurisdiction, appellant contends that the pendency of the old indictment against him in Wood County is conclusive against the jurisdiction of the District Court of Rains County over the offense. Granting that it would be unjust and illegal for the state to prosecute the appellant for the same offense growing out of the same unlawful act in both Wood and Rains Counties, the dismissal of the suit in Wood County would be an adequate answer to a plea in abatement. From Ency. of Law and Proc., Vol. 1, p. 25, the following quotation is taken:
“The tendency of the later cases and a preponderance of authority sustain the doctrine that it is a good answer to a plea of the pendency of a prior action for the same cause that the former suit has been discontinued, whether the discontinuance, be before or after the filing of the plea. Under this doctrine the plea will be overruled unless the prior suit is pending at the time of the trial of the second.”
There is nothing in the record negativing the idea that the first prosecution had been dismissed at the time of the present trial. If its dismissal was essential, the action of the trial court in overruling the plea would be supported by the presumption that the dismissal had been entered. We will add, however, with reference to both the plea in abatement touching another suit pending and the plea of former jeopardy, that there is found in the record no bills of exceptions, and the judgment of the trial court in overruling the pleas contains a recital with reference to each of them that evidence had been heard preliminary to denying the pleas. This recital would raise the presumption that the averments in the pleas were not sustained by the facts. No intimation is intended, however, that assuming the averments in the plea to be true, the result would be fatal to the conviction. In a recent case it was said:
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MORROW, Presiding Judge.
By indictment in the District Court of Wood County it was charged that the appellant “did unlawfully and willfully displace and interfere with a switch upon the track of a railroad,” etc. The jury assessed against him a punishment of confinement in the penitentiary for a period of seven years.
On a former trial in the District Court of Wood County the appellant, on an indictment in two counts, was convicted with a penalty of confinement in the penitentiary for ninety-nine years assessed against him. Upon that trial each of the counts contained the language above quoted, each of the counts
charging,
however, that as a result of the unlawful act the death of Charlie Cox resulted. The first count charged that the death was brought about by the appellant’s act upon malice aforethought — that is, it contained the averments appropriate to a charge of murder. On the trial that count was abandoned. On appeal the judgment was reversed for the reason that upon the count in the indictment upon which the accused was convicted, the maximum penalty allowed by law was confinement in the penitentiary for a period of seven years. After the reversal, the indictment upon which this conviction is founded was returned. The indictment is in substance the same as that upon which the accused was formerly convicted save that in the present indictment the reference to the death of Charlie Cox is omitted. After the second indictment (the one upon which the present conviction is had) was returned, the case was transferred by change of venue to the District Court of Rains County, where the trial at present under consideration took place.
By a plea of former jeopardy appellant asserts that his first trial resulted in an acquittal — that is, that his acquittal of murder operated to exculpate him from prosecution for the criminal act which resulted in the death of the person named in the count in the first indictment, which charged him with murder. The position is not tenable. On the trial from which this appeal is taken, appellant was convicted of the commission of the offense charged in the second count of the former indictment. The state having a right to prosecute him for the offense charged in that count, was privileged to exercise the fight either upon the old indictment or upon a new one filed at the time when the offense charged was not barred by the statute of limitations.
The statute reads thus:
“If any person shall willfully place any obstruction upon the track of any railroad, or remove any rail therefrom, or displace or interfere with any switch thereof, or in any way injure such road, or do any damage to any railroad, locomotive, tender, or car whereby the life of any person might be endangered, he shall be confined in the penitentiary not less than two nor more than seven years. If the life of any person is lost by such act the offender is guilty of murder.” (Art. 1335, P. C., 1925.)
Upon mature deliberation, this court, upon the former appeal, reached the conclusion that the statute quoted denounces two offenses, namely, (a) that of willfully obstructing a railroad track; and (b) with malice aforethought, by causing the déath
of an individual by willfully obstructing a railroad track. As stated above, on the former trial the offense of murder was charged, but was abandoned. In the second count the present offense was charged, which resulted in a conviction and the granting of a new trial by reversal upon appeal. See Johnson v. State, 97 Tex. Crim. Rep. 658. In reaching the conclusion that the plea of former jeopardy is not available upon the facts stated against the present conviction, what is understood to be a. rule of practice established by statute and judicial construction of long standing in this state is observed. “The effect of a new trial is to place the. cause in the same position in which it was before any trial had taken place.” Art. 759, C. C. P., 1925. The effect follows whether a new trial is given in the. trial court or upon appeal. See Cox v. State, 7 Tex. Crim. App. 495. In Art. 417, C. C. P., the use of separate counts in an indictment is sanctioned and the declaration is made that if the indictment be good in either of the counts it is sufficient. Art. 8, C. C. P., declares that one shall not twice be put in jeopardy of life or liberty for the same offense. Each of the statutes mentioned has received judicial interpretation as is illustrated by many decisions which are collated in Vernon’s Ann. Tex. C. C. P., under the several articles of the statutes mentioned. In number, the cases are too many for review. As we understand them, however, they, with uniformity, support the conclusion announced above, namely, that the law against double jeopardy is not offended in the present conviction. We refer to Mizell v. State, 83 Tex. Crim. Rep. 305; Stewart v. State, 35 Tex. Crim. Rep. 175. In the latter case, Stewart was indicted for rape and incest, each growing out of the same transaction. He was acquitted of rape and against his trial for incest he interposed his prior acquittal of the offense of rape. The rejection of the plea by the trial court was upheld upon appeal. Many other illustrations might be given in the cases collated under the articles of the statute mentioned.
By way of plea to the jurisdiction, appellant contends that the pendency of the old indictment against him in Wood County is conclusive against the jurisdiction of the District Court of Rains County over the offense. Granting that it would be unjust and illegal for the state to prosecute the appellant for the same offense growing out of the same unlawful act in both Wood and Rains Counties, the dismissal of the suit in Wood County would be an adequate answer to a plea in abatement. From Ency. of Law and Proc., Vol. 1, p. 25, the following quotation is taken:
“The tendency of the later cases and a preponderance of authority sustain the doctrine that it is a good answer to a plea of the pendency of a prior action for the same cause that the former suit has been discontinued, whether the discontinuance, be before or after the filing of the plea. Under this doctrine the plea will be overruled unless the prior suit is pending at the time of the trial of the second.”
There is nothing in the record negativing the idea that the first prosecution had been dismissed at the time of the present trial. If its dismissal was essential, the action of the trial court in overruling the plea would be supported by the presumption that the dismissal had been entered. We will add, however, with reference to both the plea in abatement touching another suit pending and the plea of former jeopardy, that there is found in the record no bills of exceptions, and the judgment of the trial court in overruling the pleas contains a recital with reference to each of them that evidence had been heard preliminary to denying the pleas. This recital would raise the presumption that the averments in the pleas were not sustained by the facts. No intimation is intended, however, that assuming the averments in the plea to be true, the result would be fatal to the conviction. In a recent case it was said:
“The pendency of one indictment does not prevent the grand jury from returning subsequent indictments charging the same offense.” (Stovall v. State, 260 S. W. 178.)
The facts in the Stovall case, supra, which was affirmed, and the conclusions announced, are analogous and consistent with the result of the trial of the appellant in the present instance.
In bill of exceptions No. 2 it is made to appear that a juror named Taylor declared on his voir dire examination that “he was prejudiced against negroes because a negro had killed his grandfather.” Appellant was a negro and interposed a challenge to the juror for cause, which the court overruled. Appellant excused the juror upon a peremptory challenge. He subsequently exhausted his peremptory challenges and relies upon the transaction as a ground for reversal. In his bill of exceptions supporting this position appellant says:
“The court overruled defendant’s challenge for cause and retained said juror upon the panel and defendant was forced to exhaust his challenges upon said juror and defendant did exhaust all of his said challenges allowed by law in selecting the said juror and was forced to take upon said jury jurors that were objectionable to him.”
From the averments in the bill it appears that the court was in error in failing to sustain the challenge for cause directed at juror Taylor. In qualifying the bill, the court states that in response to an inquiry by the court the juror said in substance that his prejudice against negroes would not influence him in the trial of the case but that he would give to the accused a fair and impartial trial. The statute, Art. 616, C. C. P., 1925, states the reasons for a challenge for cause. The twelfth reason includes prejudice against the defendant. The thirteenth reason relates to an opinion formed upon hearsay. Touching the last-mentioned reason it was within the province of the court to exercise discretion and to refuse to sustain the challenge where the opinion is based upon hearsay, and the juror feels able to disregard it. It is understood, however, that no such discretion attaches to subdivision 12 of the statute which gives to the accused or the state the right to have excluded from the panel a
biased or prejudiced juror.
Such has been the construction of the statute announced many times. See opinion of Justice Lattimore in Hooper v. State, 272 S. W. 493. Conceding that Taylor was a prejudiced juror and that in refusing to excuse him the court was wrong, the fact remains that he did not sit upon the jury; and the question occurs, does the bill of exceptions show that the improper ruling worked an injury? It seems to be the rule that where the court erroneously fails to sustain the proper challenge of a juror for cause a reversal will not result unless it is made to appear that the error brought injury to the accused. Injury will be inferred where it is made to appear that the challenged juror was excused by the appellant upon a peremptory challenge ; that all of his peremptory challenges were exhausted and that thereafter there was placed upon the jury an “objectionable” juror. See Hudson v. State, 28 Tex. Crim. Rep. 338; Keaton v. State, 40 Tex. Crim. Rep. 139; Haines v. State, 35 Tex. Crim. Rep. 113; Branch’s Ann. Tex. P. C., Sec. 541. By the term “objectionable juror” is not meant that the juror is subject to challenge for cause but that his examination must show some degree of disqualification such, for example, as the formation of some character of. opinion as to the guilt or innocence of the accused. See Connell v. State, 45 Tex. Crim. Rep. 153. Under the conditions mentioned above, to make such a showing as will demand the attention of the reviewing court, it is essential that the bills of exceptions be so framed as to bring before the appellate court knowledge of the facts upon
which it is claimed that the juror forced- upon the accused is “objectionable,” as that term is explained hereinabove. In passing upon the matter, Presiding Judge White, in the case of Hudson v. State, 28 Tex. Crim. App. 338, thus expressed the views of the court:
“It is true that defendant says he exhausted his peremptory challenges in the selection of the jury, and that an ‘objectionable juror’ was put upon him and, notwithstanding his challenge, sat upon his trial.
He does not show wherein said juror was objectionable or the reasons of his objection to him, nor that he was not a fair and impartial'juror.
An ‘objectionable’ juror, in the sense in which the term is used in this connection, means one against whom such cause for challenge exists as would likely affect his competency or his impartiality in the trial. Without some such showing it is idle simply to say that a juror is objectionable. Having exhausted his peremptory challenges he is not under the circumstances here presented entitled to exercise a further challenge of this character. Loggins v. The State, 12 Tex. Ct. App. 65.” See also Carter v. State, 45 Tex. Crim. Rep. 431.
The case was tried at a term ending on the 30th day of' December, 1926. The statement of facts was filed on the 5th of May, 1927. Notice of appeal was given on the 29th, of December, 1926. Ninety days thereafter were allowed within which to prepare and file a statement of facts. The statement found in the record not having been filed within the time allowed by law and finding nothing in the record to excuse the delay, this court has no choice other than to ignore the statement of facts in obedience to Art. 760, C. C. P., 1925.
In the record are a number of bills of exceptions relating to the rulings of the court upon the receipt and rejection of evidence. A lack of knowledge touching the evidence, that was before the court and jury precludes this court from appraising the several bills mentioned.
For a like reason this court is not in a position to determine whether the special charges requested were called for by the evidence adduced.
The judgment is affirmed.
Affirmed.