[626]*626McCALEB, Chief Justice.
On October 2, 1969 Joseph Edward Johnson was charged with manslaughter. His trial, conducted November 12, 13 and 14, 1969, resulted in a hung jury, a mistrial was entered and he was released on his bond previously filed.
Johnson was rearraigned on March 16, 1970 and pleaded not guilty. The case was fixed for trial on April 21, 1970 and Johnson was again released on the previously filed bond. Following the second trial he was convicted and sentenced to serve 21 years at hard labor in the State Penitentiary.
In this Court appellant relies on six bills of exceptions to obtain a reversal of his conviction.
Bill of Exceptions No. 2 was reserved when the trial court overruled a motion to quash the indictment for the reason that: “The general venire and the petit jury venire was [sic] improperly drawn, selected and constituted.”
At the outset of our discussion of this bill, we observe that four other grounds were set forth in the motion to quash. The alleged defects, if true, would have presented serious challenges to the validity of the indictment. Thus it was alleged that the individual grand jurors were not qualified under Art. 401, C.Cr.P.; that persons other than the members of the grand jury were present while the grand jury was deliberating or voting or when the jury was examining a witness; that less than nine grand jurors were present when the indictment was found; and that the indictment was not endorsed “a true bill” and was not signed by the foreman of the grand jury.
The bill of indictment itself, which shows that it was properly endorsed and signed by the foreman, evidences the totally frivolous nature of this assertion. And no evidence was offered in support of the other alleged infirmities. Indeed, it was conceded by defense counsel, during the hearing on the motion, that they did not have any evidence, either then or when the motion was filed, that unauthorized persons were in the grand jury room during ■the jury’s deliberations or that fewer than the required number of jurors were present when the indictment was found.
With regard to the allegation on which Bill No. 2 is based, that “the general venire and the petit venire was [sic] improperly drawn, selected and constituted”, the complaint is merely a conclusion of the pleader. It does not set forth in what manner the venires were illegally drawn or constituted nor does it state any facts to support such a conclusion. Obviously, this allegation, like the others, was merely designed to permit defense counsel to conduct a “fishing expedition” at the hearing,
[628]*628In this Court counsel assert that the invalidity of the selection of the venires consisted in the systematic inclusion of Negroes on the general venire. The contention is based on one answer given by Harold J. Sylvester, Clerk of Court and ex-officio member of the jury commission. During his examination the following colloquy occurred:
“Q. Now, in your selection of the members to go into the general venire would you say that you included Negroes ?
“A. I do.
“Q. Systematically or intentionally?
“A. Well, I would say it is systematically.”
Considering the entirety of Sylvester’s testimony, it is clear that in answering this question he thought that he was required to choose between the two tei'ms “systematically” and “intentionally”, and the term “systematically” better described the manner in which he made his selections. His testimony, as well as that of the other commissioners, demonstrates that the "system” they used resulted in the inclusion of Negroes on the venire. There was no showing that their method resulted in the exclusion of Negroes fx'om the grand or petit juries, and the entirety of their testimony demonstrated that Negroes were not discriminated against in the selection of the venires.1
We find, therefore, that the trial court properly overruled the motion to quash.
Following his rearraignment on March 16, 1970, defense counsel (who had also represented appellant on the first trial) on March 25, 1970, filed a number of pretrial motions which were heard on April 2, 1970. On the latter date they moved to obtain a transcript of the entire record of the previous trial. And on April 7, 1970, they sought to obtain a transcript of the testimony of two persons, who allegedly testified at the first trial but whose whereabouts were assertedly xxnknown, so that their testimony might be preserved and offered at the second trial. On April 9, 1970 the latter motion was amended so as to include the testimony of a third named person. The motions were regularly set down for a hearing on April 13, 1970, were heard on that day and wex-e overruled.
Bill of Exceptions No. 5 was reserved when the court denied the motion to transcribe the entix-e proceedings of the first trial. Bill of Exceptions No. 6 recites that it was reserved to the court’s overruling the motion to transcribe the testimony “of two witnesses who testified on defendant’s behalf at the previoixs trial * * * when [630]*630the witnesses were not available to testify on defendant’s behalf at the second trial.”
The note of evidence taken at the hearing on the motions reveals that the motion to obtain a transcript of the entire record of the first trial was overruled because it came too late.
The uncontradicted testimony of the court reporter was that, if ordered to transcribe the record, she would do so, but that because of the length of the transcript it would take from twelve to fifteen days to complete it. She further said that it could be completed in that time only if the court would close and permit her to work full time on the transcription. Defense counsel did not request a continuance
The landmark case with regard to an indigent’s right to a free transcript of earlier proceedings is Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Therein the United States Supreme Court enunciated the rule that an indigent defendant is entitled to a transcript of the proceedings for the purposes of appellate review of his conviction, if such transcripts are available to other accused for a fee, unless other effective means were available which would afford him adequate review. The decision is based on the concept that “In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color,” and that “Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.”
The case has been followed in other decisions. See, for instance, Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); and Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967).2
In the Roberts case the court reaffirmed and restated the jurisprudence as follows:
“Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant,
Free access — add to your briefcase to read the full text and ask questions with AI
[626]*626McCALEB, Chief Justice.
On October 2, 1969 Joseph Edward Johnson was charged with manslaughter. His trial, conducted November 12, 13 and 14, 1969, resulted in a hung jury, a mistrial was entered and he was released on his bond previously filed.
Johnson was rearraigned on March 16, 1970 and pleaded not guilty. The case was fixed for trial on April 21, 1970 and Johnson was again released on the previously filed bond. Following the second trial he was convicted and sentenced to serve 21 years at hard labor in the State Penitentiary.
In this Court appellant relies on six bills of exceptions to obtain a reversal of his conviction.
Bill of Exceptions No. 2 was reserved when the trial court overruled a motion to quash the indictment for the reason that: “The general venire and the petit jury venire was [sic] improperly drawn, selected and constituted.”
At the outset of our discussion of this bill, we observe that four other grounds were set forth in the motion to quash. The alleged defects, if true, would have presented serious challenges to the validity of the indictment. Thus it was alleged that the individual grand jurors were not qualified under Art. 401, C.Cr.P.; that persons other than the members of the grand jury were present while the grand jury was deliberating or voting or when the jury was examining a witness; that less than nine grand jurors were present when the indictment was found; and that the indictment was not endorsed “a true bill” and was not signed by the foreman of the grand jury.
The bill of indictment itself, which shows that it was properly endorsed and signed by the foreman, evidences the totally frivolous nature of this assertion. And no evidence was offered in support of the other alleged infirmities. Indeed, it was conceded by defense counsel, during the hearing on the motion, that they did not have any evidence, either then or when the motion was filed, that unauthorized persons were in the grand jury room during ■the jury’s deliberations or that fewer than the required number of jurors were present when the indictment was found.
With regard to the allegation on which Bill No. 2 is based, that “the general venire and the petit venire was [sic] improperly drawn, selected and constituted”, the complaint is merely a conclusion of the pleader. It does not set forth in what manner the venires were illegally drawn or constituted nor does it state any facts to support such a conclusion. Obviously, this allegation, like the others, was merely designed to permit defense counsel to conduct a “fishing expedition” at the hearing,
[628]*628In this Court counsel assert that the invalidity of the selection of the venires consisted in the systematic inclusion of Negroes on the general venire. The contention is based on one answer given by Harold J. Sylvester, Clerk of Court and ex-officio member of the jury commission. During his examination the following colloquy occurred:
“Q. Now, in your selection of the members to go into the general venire would you say that you included Negroes ?
“A. I do.
“Q. Systematically or intentionally?
“A. Well, I would say it is systematically.”
Considering the entirety of Sylvester’s testimony, it is clear that in answering this question he thought that he was required to choose between the two tei'ms “systematically” and “intentionally”, and the term “systematically” better described the manner in which he made his selections. His testimony, as well as that of the other commissioners, demonstrates that the "system” they used resulted in the inclusion of Negroes on the venire. There was no showing that their method resulted in the exclusion of Negroes fx'om the grand or petit juries, and the entirety of their testimony demonstrated that Negroes were not discriminated against in the selection of the venires.1
We find, therefore, that the trial court properly overruled the motion to quash.
Following his rearraignment on March 16, 1970, defense counsel (who had also represented appellant on the first trial) on March 25, 1970, filed a number of pretrial motions which were heard on April 2, 1970. On the latter date they moved to obtain a transcript of the entire record of the previous trial. And on April 7, 1970, they sought to obtain a transcript of the testimony of two persons, who allegedly testified at the first trial but whose whereabouts were assertedly xxnknown, so that their testimony might be preserved and offered at the second trial. On April 9, 1970 the latter motion was amended so as to include the testimony of a third named person. The motions were regularly set down for a hearing on April 13, 1970, were heard on that day and wex-e overruled.
Bill of Exceptions No. 5 was reserved when the court denied the motion to transcribe the entix-e proceedings of the first trial. Bill of Exceptions No. 6 recites that it was reserved to the court’s overruling the motion to transcribe the testimony “of two witnesses who testified on defendant’s behalf at the previoixs trial * * * when [630]*630the witnesses were not available to testify on defendant’s behalf at the second trial.”
The note of evidence taken at the hearing on the motions reveals that the motion to obtain a transcript of the entire record of the first trial was overruled because it came too late.
The uncontradicted testimony of the court reporter was that, if ordered to transcribe the record, she would do so, but that because of the length of the transcript it would take from twelve to fifteen days to complete it. She further said that it could be completed in that time only if the court would close and permit her to work full time on the transcription. Defense counsel did not request a continuance
The landmark case with regard to an indigent’s right to a free transcript of earlier proceedings is Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Therein the United States Supreme Court enunciated the rule that an indigent defendant is entitled to a transcript of the proceedings for the purposes of appellate review of his conviction, if such transcripts are available to other accused for a fee, unless other effective means were available which would afford him adequate review. The decision is based on the concept that “In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color,” and that “Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.”
The case has been followed in other decisions. See, for instance, Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); and Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967).2
In the Roberts case the court reaffirmed and restated the jurisprudence as follows:
“Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution.” (Emphasis added)
[632]*632In the recent decision of Britt v. North Carolina, 404 U.S. 226, 92 S..Ct. 431, 30 L.Ed.2d 400 (1971), the Court held that a denial of a transcript of a mistrial, the accused being subsequently tried for and convicted of murder, did not violate the equal protection clause of the Constitution, because the circumstances showed that there was available an informal alternative which was substantially equivalent to a transcript. However, the obiter dictum of the opinion indicates that the Court would extend the rationale of Griffin and its progeny if presented with a case wherein a transcript of a mistrial for use in preparing for a subsequent trial is requested by an indigent, and there is no adequate alternative.3
But again, in the Britt opinion, the Court recognized that the holding in Griffin is that “the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners.” (Emphasis added.)
We are of the opinion, however, that those cases are distinguishable from the one presently under consideration and, therefore, are not controlling here. In fact, it is clear from the record before us that, in the instant matter, the refusal to provide the requested transcript was not based on, and did not result from, the financial inability of the appellant to pay for it. Rather, the ruling of the court was prompted by the demonstrated fact that, when requested, the transcript could not .be prepared in time for the trial, unless one section of the court stopped its operations entirely. Because of this the transcript would then have been unavailable before trial even to one willing and able to pay for it. As heretofore noted, no motion for a continuance was requested because of the then unavailability of the transcript, and appellant’s counsel made no showing as to why they delayed seeking the transcript.4
Under these circumstances, we find no error in the trial court’s overruling the motion to transcribe the record of the first trial.
We are likewise of the opinion that there is no merit in Bill of Exceptions No. 6. In appellant’s motion and the supplemental motion to obtain a transcript of the testimony [634]*634of certain witnesses he asked for the testimony of Rodney Lemelle, Beverly Ann Perks and Johnny Smith. The bill of exceptions was reserved to the refusal of the court to order a transcription of only tzvo of these persons, without designating which two. We presume, however, that the witnesses referred to are Johnny Smith and Beverly Ann Perks, because in appellant’s brief to this Court it is conceded that Ronnie Lemelle was located in Houston, Texas, and was present at the trial, having been subpoenaed under the provisions of C.Cr. Proc. Art. 741 as an out-of-state witness.5
The State in its brief here points out that Johnny Smith was not called as a witness at the first trial by either the State or the defendant. This assertion is supported by an affidavit of the Court Reporter who took the testimony in the first trial, and is not challenged by the appellant. Being a court of review, and having no original jurisdiction in criminal matters, we ordinarily do not take cognizance of documents submitted here for the first time. However, in view of the State’s declaration and the affidavit combined with defense counsel’s failure to deny the statement made by counsel for the State, we think it would serve no useful purpose to remand the case to establish the fact that Smith did not testify.
In any event, we have concluded that appellant did not make a sufficient showing to warrant the issuing of an order to transcribe the testimony of either Smith or Beverly Ann Perks who, it appears, testified at the first trial as a rebuttal witness for the State and not as a witness for the defense, as alleged.
Although in some jurisdictions the statutes enumerate the grounds upon proof of which prior testimony can be introduced at a later trial, the concept of permitting the use of such testimony, under certain circumstances and conditions, in a subsequent trial is well grounded in the common law, and its introduction is a matter within the discretion of the trial court. 31A C.J.S. verbo Evidence § 384, p. 944 et seq. One of the circumstances, under which the prior testimony may be used, is that the witness is unavailable to testify at the later proceeding. In addition:
“A proper foundation or predicate must be laid before former testimony can be admitted as competent. So, a party seeking to introduce the testimony of a witness given on a former trial must first introduce preliminary evidence of the existence of the reasons for its introduction, and must show a valid excuse for not producing the witness. He must show that the witness or witnesses whose testimony is offered are not available for ex-[636]*636animation at the time of the trial, even where there was opportunity for cross-examination at the former proceeding, and that it is impossible for him to procure their attendance and testimony.
* * s]i * * *
“The preliminary proof should be full and convincing, and the inability of the witness to appear must be established by a ruling of the court or by agreement of counsel. The sufficiency of such proof is primarily a question for the trial court and is largely within its discretion, which will not be interfered with unless an abuse of discretion is shown.” 31A C. J.S. verbo Evidence § 391, p. 962.
Similar language is also found in Volume 29 of American Jurisprudence, in its exposition of the pertinent evidentiary principle". Thus, it is therein stated that:
“It is well settled that the sufficiency of the proof to establish the unavailability of a witness is largely within the discretion of the trial court, and in the absence of a showing that such discretion has been abused, its decision will not be interfered with on appeal. It is said that if there is evidence of an effort to subpoena a witness who does not appear, it is within the discretion of the trial court to determine whether his testimony given at a former trial shall be admitted, although the mere issuance of a subpoena in itself is not a sufficient basis for the admission of testimony rendered at a former trial by the missing person.” 29 Am.Jur. 822, verbo “Evidence”, Sec. 750.
“ * * * it has frequently been said that the testimony of a witness given at a former trial or proceeding, with an op-opportunity for cross-examination, is admissible in a subsequent trial involving the same action or proceeding, if it is shown that such witness is unavailable since he is out of the state or jurisdiction — that is, beyond the reach of the process of the court.” 29 Am.Jur. 826, verbo “Evidence”, Sec. 755.
The only evidence introduced at the hearing on the motion to obtain a transcript of the testimony of these witnesses is the testimony of Austin Wyble, Jr., a St. Landry Parish Deputy who read from the returns of the subpoenas issued for Smith and Beverly Ann Perks. According to his testimony, the return for Beverly Ann Perks showed that “subject now lives in Washington, D. C.” and for Smith it showed that “No one knows where this subject is anymore.” (The subpoenas and their respective returns were not placed in evidence.)
Deputy Wyble was not the officer who attempted the service, and had no personal knowledge of what investigation was made by the deputy in attempting to locate the persons named in the subpoenas. The deputy who did attempt the service was not called as a witness. No other evidence was offered by the defense to show that it had taken any action to locate the wit[638]*638nesses, or why it had not attempted to subpoena Beverly Ann Perks under the provisions of C.Cr.P. Article 741, as it had subpoenaed Rodney Lemelle who had moved to Texas subsequent to the original trial.
On this showing we conclude that the trial court did not abuse its discretion in denying the motion to transcribe testimony.
Bill of Exceptions No. 7 is based on the assertion that the trial court “refused to dismiss for cause a prospective juror, who on voir dire examination stated that he had a fixed opinion that would not readily yield to the evidence, and the prospective juror would require the defendant to introduce evidence to change that opinion.”
There is no merit in the bill. The testimony of the juror (Henry Cappel, Jr.) does not, as alleged, reflect that he had a fixed opinion that would not readily yield to the evidence. To the contrary, the evidence discloses, as the trial judge observed in his per curiam, that the prospective jur- or “did not have such a fixed opinion as would not yield to the evidence.” The following responses by the proposed juror to questions of the trial judge clearly exhibit the correctness of the ruling.
“BY THE COURT: Mr. Cappel, the fact that you may have an opinion or impression about this case, is it such that you could not render an impartial verdict according to the law and to the evidence as you hear it here in Court?
“BY MR. CAPPEL: No sir, I could decide it according to the evidence.
“BY THE COURT: You could—
“BY MR. CAPPEL: It wouldn’t interfere with my impression.
“BY THE COURT: You could disregard any impression you may have and relegate your decision simply to the evidence you hear from the witness stand, your appreciation of the evidence, and the law as the Court instructs you the law is?
“BY MR. CAPPEL: Yes, sir.
“BY THE COURT: Mr. Cappel, you have made a certain response to the Court — would you require either the State or the defendant to put on evidence to change your mind? Is it that made up or could you just take the evidence as you hear it and disregard everything else?
“BY MR. CAPPEL: I could disregard everything else. This was just a conversation this morning. This happened — he asked me if I had formed an opinion and I said yes. I didn’t say it would' — .”
The Code of Criminal Practice, Article 797(2), specifically provides that:
“ * * * An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground [640]*640of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence; ’’
The Article has been followed innumerable times by this Court. See State v. McDonald, 224 La. 555, 70 So.2d 123; and State v. Futch, 216 La. 857, 44 So.2d 892, and the cases cited therein.
At the trial the State called Philip Henry, Jr. as a witness. During his cross-examination, defense counsel interrogated him and received the answers as follows:
“Q. I believe you said you knew Edward Johnson all of your life, you grew up with him and went to school with him?
“A. Yes, sir.
“Q. Do you like him?
“A. I never did mess around with him. “Q. Do you dislike him?
“A. I tell you why I didn’t mess around with him.
“Q. All right.
“A. Because when he whip this old man, Mr. Burleigh, on the railroad track — -”
At this point defense counsel objected to the testimony. The objection was sustained, and counsel moved for a mistrial which was denied. Later while he was still cross-examining Henry, the following colloquy occurred:
“Q. Now, you testified that when you saw — when you realized that Edward Johnson was the deputy in the bar that night that that surprised you, is that correct?
“A. Yes, sir.
“Q. How would that surprise you in view of the fact that Edward Johnson had, previous to that time, had arrested you for fighting?
"A. Well, to tell you the truth, I thought a deputy couldn’t have no record like he had, and I been knowing' — ”
Again defense counsel objected and moved for a mistrial, and it was denied. Bills of Exceptions No. 11 and 12 were reserved to the court’s overruling the motions.
Although, at the time the answers were given, defense counsel sought a mistrial and reserved the bill to the court’s ruling thereon, their contention now is that the court erred in failing to admonish the jury to disregard the testimony. They argue that the testimony was prejudicial to appellant, and that C.Cr.P. Article 771 placed on the trial judge the duty to “declare a mistrial in the event prejudicial and irrelevant statements are made in the presence of the jury, or to admonish the jury to disregard the same if, in his discretion, [642]*642an admonishment will be sufficient to cure the prejudicial effect of the statement.”
At the outset we observe, as did the trial court in its per curiam, that the answers were not unsolicited, gratuitous comments of the witness. They were directly responsive to the questions propounded by defense counsel himself and not to be unexpected. For instance, when counsel indicated to the witness that he should tell why he did not like the appellant, he must’ surely have anticipated that the answer would be uncomplimentary and prejudicial to appellant.
But be that as it may, in relying on Article 771, counsel completely disregarded the provision of the article that “upon the request of the defendant or the state” (emphasis added) the court shall admonish the jury to disregard a remark or comment which is immaterial and prejudicial to the defendant or the state. No request for an instruction was made in the instant case. We hold, therefore, that there is no substance in the assertion that the judge committed reversible error in failing to admonish the jury to disregard the remarks.
In addition to the above discussed bills of exceptions which were briefed by defense counsel, there appear in the record seven other perfected bills which were not discussed on this appeal, counsel evidently considering them to be without merit. Nevertheless, we have examined them and find that none presents reversible error.
Bill of Exceptions No. 1 asserts that the trial court erred in denying defendant’s motion to exclude the public and press from the pre-trial hearing. The motion ; pparently was made orally in open court. We find nothing in the record to establish that appellant was in any way prejudiced by the ruling.
Bill of Exceptions No. 3 was reserved when the trial court overruled a motion praying “that the petit jury venire for the week during which this trial is set be quashed or that this case be continued until such time as this case is set for trial under a method whereby the particular petit jury applicable to this case will be determined by chance.”
In his per curiam to this bill the trial court states that “The petit jury venire was selected in conformity with Article 416 of the Code of Criminal Procedure.” This being so (nothing in the record contradicts the recital of the trial judge), the bill is without substance.
Alleging that the method “whereby the Judge presiding over a trial of a case is determined by the time to which the State fixes such case for trial deprives defendant of the right to have the selection of the judge determined impartially * * * and deprives him of due process of law and the equal protection of the law * *,” [644]*644'appellant moved to quash the indictment, and/or to continue the cause “until such time as this proceeding is allotted to a division of this court by chance.”
The trial court overruled the motion and appellant reserved Bill of Exceptions No. 4.
Conceding, arguendo, that such a right as claimed by appellant exists, nothing in the record supports the assertion that he was deprived of it. Moreover, there is no showing or even an assertion that the judge who presided over the trial did not fairly and impartially conduct the proceedings.
The bill is groundless.
Father Lawrence Flanagan, who had not been subpoenaed, was called as a witness by the State. Defense counsel objected to his testifying on the ground that he had not been sequestered and reserved Bill of Exceptions No. 8 when an objection was overruled and the witness was permitted to testify. The per curiam of the trial judge states that “The witness, * * * was not in the courtroom and had not heard any of the testimony. The defendant was not prejudiced by allowing the witness to testify because he had not been sequestered.”
The record supports the facts set forth in the per curiam. The bill is not meritorious.
Bill of Exceptions No. 9 was reserved when the trial court, over objection of defense counsel, permitted Mrs. Aubrey Fuller, a State witness, to testify, it being asserted that she had not been placed under the rule of sequestration.
The per curiam of the trial court states:
“Mrs. Aubrey Fuller, a witness not under subpoena, was not in the courtroom when the witnesses were originally sequestered. When she did appear, she left the courtroom with other witnesses who were re-instructed as to the rule of sequestration. When the witnesses were asked to leave the courtroom prior to reception of testimony she left.”
The note of evidence confirms the court’s observations. The bill has no merit.
While examining one of its witnesses, the State’s attorney exhibited to him a photograph of the scene of the crime and was asked to point out where he observed the body of the victim just after the incident occurred. Defense counsel objected for the reason that “It’s the same photograph that the body is drawn in there. If he has an independent recollection * *
The State’s attorney asserted that there was no body “drawn in” on the photograph. After colloquy between the court and counsel the objection was overruled and Bill of Exceptions No. 10 was reserved.
[646]*646There are a number of photographs of the scene of the crime in the record. We find none where a body is “drawn in.” The record establishes that the witness was directed to tell, from his “own personal memory” only, where the body was.
We find no error in the court’s ruling.
During the trial the State called Philip Henry, Sr. as a witness. The defense objected to his testifying because “he had been in attendance at the first trial in violation of the first trial' Judge’s order that all witnesses present themselves and be sequestered.” The objection was overruled, and Bill of Exceptions No. 13 was perfected.
In his per curiam to this bill the trial judge states:
“The witness, Philip Henry, Sr., was not called as a witness at the first trial of defendant, hence, not placed under the rule of sequestration with the witnesses for that trial. The ’ first trial ended in a mis-trial. He was called as a witness in the second trial, and placed under the rule of sequestration. Even if he was in the courtroom for the first trial which ended in a mis-trial, the State is not thereby prevented from calling him as a witness in the second trial.”
The ruling is correct.
For the reasons assigned the conviction and sentence are affirmed.
BARHAM, J., dissents and assigns written reasons.
DIXON, J., concurs.