WILLSON, Judge.
Over the defendants’ objections the State was permitted to prove that a few minutes after Mathis, the deceased, was .attacked and shot, and at the same locality, Bates and the two Harveys were assaulted by two persons; that the elder Harvey was shot by said two persons and severely but not mortally wounded; that one of said two persons making said assault was the defendant Ed. Powell, and that the other one resembled the defendant Leeper; that said assault was made by ¡said two persons for the purpose of robbing the persons assaulted. Defendants reserved a bill of exception to the admission of this testimony, from which it appears that the learned trial judge admitted it upon the ground that it was res gestee of the assault made upon Mathis, the deceased.
We coincide with the trial judge in his view of the testimony. The assaults upon Bates and the two Harveys were almost simultaneous with the previous assault made upon Mathis, and were made at the same place. Robbery was manifestly the motive actuating the assailants. They had deliberately planned the robbery of the parties assaulted and had laid in wait for them at the place where the assaults were committed. Each of the assaults was a part of the general scheme—a part of the conspiracy to rob the persons assaulted. They were s© closely connected with, related to, and illustrative of each other as to make each res gestee of the other. This testimony was essential to identify the parties who assaulted and shot Mathis, and to show the motive and intent of such assault. It bore directly upon the main issue in the case, and was not extraneous matter within the meaning of the rule which requires that the jury should be instructed to restrict their consideration of extraneous matter adduced in evidence to the specific purpose for which it was admitted. McKinney v. The State, 8 Texas Ct. App., 626; Willson’s Crim. Stat., sec. 2344.
We hold that said testimony was admissible, and that it was not required that the court should instruct the jury as to the purpose for which it was admitted and to limit their consideration of it to such purpose.
Furthermore, the main if not the sole reason of the rule which requires the court to restrict the jury in the consideration of extraneous matter admitted in evidence does not obtain,in this case. Defendants were being prosecuted for the murder of Mathis by shooting him immediately before the attack was made upon Bates and the Harveys. It was conclusively proved that Mathis died within a few hours from the effects of that shooting. None of the other parties assaulted were killed. Hence the jury could not have been influenced or misled by the testimony relating to the assaults upon Bates and the Harveys to convict the defendants of those assaults. It is not clear to the mind of the writer that in such case, even if the matter admitted in evidence was extraneous, that it would be error to omit to give an instruction limiting its consideration by the jury. It would be the better practice, perhaps, in such case to give such an in[70]*70struction, but it is not necessary that this question should be here determined.
It is made to appear by another bill of exception that after the defendant Ed. Powell had been arrested and placed in jail his shirt was taken off his body by the jailer, and marks or bruises were found upon his body, indicating that he had been struck one or more blows. This testimony was objected to by the defendant upon the ground that it was compelling the defendant to testify against himself. We do not think that the bill of exception shows that any error was committed in this matter. It does not appear that the defendant was compelled to expose his body, or that his shirt was removed without his consent. Nor is it shown by the bill of exception what injury or prejudice might have been caused said defendant by the admission of said testimony. In the manner in which this ruling of the court is presented by the bill of exception it does not appear that any material error, if error at all, was committed. Willson’s Crim. Stats., sec. 2368.
There is but one bill of exception reserved to the charge of the court, and that is, that it does not instruct as to the law where a homicide is committed by a person who at the time is in a state of intoxication. We are of the opinion that such instruction was not demanded by the evidence. There is no evidence in the record that the defendants were drunk at the time of the homicide. On the contrary, the evidence shows that the homicide was deliberately committed by persons who evidently were in possession of their full mental powers, and whose purpose was to rob, even at the expense of human life.
Counsel for the defendants object to the charge of the court upon circumstantial evidence. No objection was made to this portion of the charge in the court below. While the last sentence of the said portion of the charge may not be correct and should have been omitted, still the error, if error it be, was not, in view of the evidence in the case and of the preceding portion of said charge, calculated to mislead the jury or in any manner to injure the rights of the defendants. If said portion of the charge had been excepted to we are, not prepared to say that we would hold it to be free from error.
With respect to the absent testimony set forth in defendants’ application for continuance, it is apparent, we think, in view of the evidence adduced on the trial, that said testimony was not probably true. Hence the refusal of the application for a continuance does not afford good ground for a new trial. Willson’s Crim. Stats., sec. 2186.
It is made a ground in the motion for a new trial that B. F. Smith, who served on the jury in the trial of the cause, was not a householder in the county or a freeholder in the State. When tested upon his voir dire as to his qualifications to serve as a juror, the said Smith gave an affirmative answer to the question, “Are you a householder in the county or a free[71]*71holder in the State?” Defendants and their counsel state, under oath, that at the time of accepting said juror they were ignorant of his disqualification and did not ascertain that fact until after the conclusion of the trial.
We will not stop to inquire into and determine the question as to the competency of the juror, for the reason that the mere disqualification of the juror is not a valid ground for a new trial. It is not a statutory ground. Code Crim. Proc., art. 777. In order to constitute it a good ground for new trial it must be further made to appear that probable injury had resulted to the defendant by reason of such juror having served upon the trial. O’Mealy v. The State, 1 Texas Ct. App., 180; The People v. The State, 6 Crim. Law Mag., p. 334, and note. There are some decisions of this court which hold to the contrary of the rule above stated. Lester v. The State, 2 Texas Ct. App., 432; Armendares v. The State, 10 Texas Ct. App., 44; Boren v. The State, 23 Texas Ct. App., 28; Brackenridge v. The State, 27 Texas Ct. App., 513. These decisions are not, we think, after a more thorough consideration of the question, consistent with the statute, and we therefore overrule them in so far as they hold that the mere disqualification of a trial juror is of itself good ground for a new trial, it not being shown that probable injury has been done the defendant by reason of the disqualified juror serving in the case. In this case it is not shown or even pretended that the juror Smith was not an impartial juror.
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WILLSON, Judge.
Over the defendants’ objections the State was permitted to prove that a few minutes after Mathis, the deceased, was .attacked and shot, and at the same locality, Bates and the two Harveys were assaulted by two persons; that the elder Harvey was shot by said two persons and severely but not mortally wounded; that one of said two persons making said assault was the defendant Ed. Powell, and that the other one resembled the defendant Leeper; that said assault was made by ¡said two persons for the purpose of robbing the persons assaulted. Defendants reserved a bill of exception to the admission of this testimony, from which it appears that the learned trial judge admitted it upon the ground that it was res gestee of the assault made upon Mathis, the deceased.
We coincide with the trial judge in his view of the testimony. The assaults upon Bates and the two Harveys were almost simultaneous with the previous assault made upon Mathis, and were made at the same place. Robbery was manifestly the motive actuating the assailants. They had deliberately planned the robbery of the parties assaulted and had laid in wait for them at the place where the assaults were committed. Each of the assaults was a part of the general scheme—a part of the conspiracy to rob the persons assaulted. They were s© closely connected with, related to, and illustrative of each other as to make each res gestee of the other. This testimony was essential to identify the parties who assaulted and shot Mathis, and to show the motive and intent of such assault. It bore directly upon the main issue in the case, and was not extraneous matter within the meaning of the rule which requires that the jury should be instructed to restrict their consideration of extraneous matter adduced in evidence to the specific purpose for which it was admitted. McKinney v. The State, 8 Texas Ct. App., 626; Willson’s Crim. Stat., sec. 2344.
We hold that said testimony was admissible, and that it was not required that the court should instruct the jury as to the purpose for which it was admitted and to limit their consideration of it to such purpose.
Furthermore, the main if not the sole reason of the rule which requires the court to restrict the jury in the consideration of extraneous matter admitted in evidence does not obtain,in this case. Defendants were being prosecuted for the murder of Mathis by shooting him immediately before the attack was made upon Bates and the Harveys. It was conclusively proved that Mathis died within a few hours from the effects of that shooting. None of the other parties assaulted were killed. Hence the jury could not have been influenced or misled by the testimony relating to the assaults upon Bates and the Harveys to convict the defendants of those assaults. It is not clear to the mind of the writer that in such case, even if the matter admitted in evidence was extraneous, that it would be error to omit to give an instruction limiting its consideration by the jury. It would be the better practice, perhaps, in such case to give such an in[70]*70struction, but it is not necessary that this question should be here determined.
It is made to appear by another bill of exception that after the defendant Ed. Powell had been arrested and placed in jail his shirt was taken off his body by the jailer, and marks or bruises were found upon his body, indicating that he had been struck one or more blows. This testimony was objected to by the defendant upon the ground that it was compelling the defendant to testify against himself. We do not think that the bill of exception shows that any error was committed in this matter. It does not appear that the defendant was compelled to expose his body, or that his shirt was removed without his consent. Nor is it shown by the bill of exception what injury or prejudice might have been caused said defendant by the admission of said testimony. In the manner in which this ruling of the court is presented by the bill of exception it does not appear that any material error, if error at all, was committed. Willson’s Crim. Stats., sec. 2368.
There is but one bill of exception reserved to the charge of the court, and that is, that it does not instruct as to the law where a homicide is committed by a person who at the time is in a state of intoxication. We are of the opinion that such instruction was not demanded by the evidence. There is no evidence in the record that the defendants were drunk at the time of the homicide. On the contrary, the evidence shows that the homicide was deliberately committed by persons who evidently were in possession of their full mental powers, and whose purpose was to rob, even at the expense of human life.
Counsel for the defendants object to the charge of the court upon circumstantial evidence. No objection was made to this portion of the charge in the court below. While the last sentence of the said portion of the charge may not be correct and should have been omitted, still the error, if error it be, was not, in view of the evidence in the case and of the preceding portion of said charge, calculated to mislead the jury or in any manner to injure the rights of the defendants. If said portion of the charge had been excepted to we are, not prepared to say that we would hold it to be free from error.
With respect to the absent testimony set forth in defendants’ application for continuance, it is apparent, we think, in view of the evidence adduced on the trial, that said testimony was not probably true. Hence the refusal of the application for a continuance does not afford good ground for a new trial. Willson’s Crim. Stats., sec. 2186.
It is made a ground in the motion for a new trial that B. F. Smith, who served on the jury in the trial of the cause, was not a householder in the county or a freeholder in the State. When tested upon his voir dire as to his qualifications to serve as a juror, the said Smith gave an affirmative answer to the question, “Are you a householder in the county or a free[71]*71holder in the State?” Defendants and their counsel state, under oath, that at the time of accepting said juror they were ignorant of his disqualification and did not ascertain that fact until after the conclusion of the trial.
We will not stop to inquire into and determine the question as to the competency of the juror, for the reason that the mere disqualification of the juror is not a valid ground for a new trial. It is not a statutory ground. Code Crim. Proc., art. 777. In order to constitute it a good ground for new trial it must be further made to appear that probable injury had resulted to the defendant by reason of such juror having served upon the trial. O’Mealy v. The State, 1 Texas Ct. App., 180; The People v. The State, 6 Crim. Law Mag., p. 334, and note. There are some decisions of this court which hold to the contrary of the rule above stated. Lester v. The State, 2 Texas Ct. App., 432; Armendares v. The State, 10 Texas Ct. App., 44; Boren v. The State, 23 Texas Ct. App., 28; Brackenridge v. The State, 27 Texas Ct. App., 513. These decisions are not, we think, after a more thorough consideration of the question, consistent with the statute, and we therefore overrule them in so far as they hold that the mere disqualification of a trial juror is of itself good ground for a new trial, it not being shown that probable injury has been done the defendant by reason of the disqualified juror serving in the case. In this case it is not shown or even pretended that the juror Smith was not an impartial juror. Ho fact is made to appear which raises the slightest suspicion of the fairness of the jury which tried the case.
We hold that the court did not err in refusing the new trial because of the disqualification of said juror, even if he was disqualified.
We find the evidence amply sufficient to warrant the conviction and to justify the extreme penalty of the law.
There is no error apparent of record for which the conviction should be disturbed, and it is therefore affirmed.
Affirmed.
Judges all present and concurring.'
ON MOTION FOB BEHEABING.
A majority of the court adheres to the opinion heretofore rendered. Judge Hurt dissents from that portion of the opinion which holds that the mere disqualification of the juror Smith does not constitute ground for a new trial, and will deliver a dissenting opinion. He concurs in other views expressed in the original opinion. We shall therefore confine our discussion to the question as to whether or not the disqualification of said juror, if in fact he was disqualified, entitled the defendants to a new trial.
[72]*72We shall not enter upon an investigation and review of authorities, for whatever may be the common law rule, or the rule established by the decisions of other States, we consider that in the decision of this question we must be controlled by our statute.
In this State for more than thirty years we have had a Penal Code and a Code of Criminal Procedure, which having been carefully prepared by distinguished, experienced, and able jurists, were adopted by the Legislature. These codes have been pronounced by the bench and bar of our State to be the most perfect system of criminal laws ever devised. It is declared to be the design of the Penal Code “to define in plain language every offense against the laws of this State and affix to each offense its proper punishment.” Penal Code, art. 1. It is declared that the Code of Criminal Procedure “is intended to embrace the rules applicable to the prevention and prosecution of offenses against the laws of this State, and to make rules of proceeding in respect to the prevention and punishment of offenses intelligible to the officers who are to act under them, and to all persons whose rights are to be affected by them.” Code Crim. Proc., art. 1.
We regard it as the imperative duty of this court, and of all other courts of this State, in the trial and determination of causes, to be guided and controlled by the statutes of the State, whenever there is a statute applicable to the question presented. Our observation is that many errors have crept into the decisions of the courts of this State, especially in criminal cases, by following common law rules and decisions of other States, overlooking our own statutes. These errors should be corrected whenever detected, and a strict adherence to statutes should be the rule governing courts in their decisions.
With respect to new trials in felony cases our Code of Criminal Procedure is specific, plain, and'emphatic. It provides that “new trials in cases of felony shall be granted for the following causes, and for no other.” Then follows an enumeration of the causes for which a new trial shall be granted. Hone of the causes enumerated embrace as a ground the disqualification of a trial juror. What authority, then, has a court to grant a new trial for such cause? If such authority exists it is certainly not conferred by any express provision of the statute. Nor do we think that it is impliedly conferred. One of the statutory grounds for a new trial is, “ Where the court has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant.” Code Crim. Proc., art. 777. Under this subdivision the error committed must be a material one calculated to injure the rights of the defendant. Is it error for a person who is not a householder or a freeholdes to serve upon a jury? Hot necessarily. Such a person is not an illegal juror to the extent that his presence upon the jury will vitiate the verdict. Such disqualification is merely a cause for challenge. If chai[73]*73lenged by the defendant it would be error to not sustain the challenge, but such error would not be material unless calculated to injure the rights of the defendant. In such case this court would not set aside the conviction unless it was made to appear that the defendant exhausted his peremptory challenges and was compelled to accept an objectionable juror. Willson’s Grim. Stats., sec. 2293.
In the case we are considering the juror was not challenged by the defendant. The juror having by his answers under oath shown that he was qualified, the court could not do otherwise than require the parties to pass upon him. Was this error? But if error, was it material error? It is not shown or pretended that the juror was not fair and impartial. It is not shown that he was corrupt, had been convicted of any felony, or was under indictment for felony, or that he was insane, or had such bodily or mental defects as rendered him unfit for jury service, or that he had been guilty of any misconduct as a juror. How then can it be said that his being a juror in the case was calculated to injure the defendant? Does the mere fact that a juror does not have a house or does not own land in this State render it probable that he would not try an accused person fairly and impartially? True, it is the policy of the law that jurors shall be either householders in the county or freeholders in the State, but we do not believe that this policy is founded on the supposition that the non-householders and non-freeholders in our State are morally unfit to serve as jurors. We think the reason of the policy is to induce men to become permanent citizens; to identify their interests with the interests of the State; to add to the prosperity of the community in which they are by having homes and by owning and cultivating lands and paying taxes thereon.
In conclusion, we will say that we rest our decision of this question upon our statute. We think the statute is not only plain but mandatory that a new trial in a felony case should not be granted because of the disqualification of a trial juror, although such disqualification was unknown to the defendant at the time of the trial, and although such want of knowledge was not because of any fault on the part of defendant or his counsel.
The motion for rehearing is overruled.
DISSENTING OPINION ON THE MOTION BOB BEHEABING.