R. S. Page v. The State, 22 Tex. Ct. App. 551

Willson, Judge. On a motion for a new trial it was made to appear that one of the jurors who tried the cause was the husband of the second cousin of the alleged injured party. It further appears that said juror, before being accepted by the defendant, was interrogated upon his voir dire, and was asked the question if he was related to said alleged injured party by consanguinity or affinity, and he answered in the negative.

Defendant asserts in his motion, which is verified by his affidavit, that at the time of accepting said juror as one of his triers he was utterly ignorant of any relationship existing between said juror and said alleged injured party, and relied upon the truth of said juror’s statement, made under oath, that no such relationship existed. One of the grounds of challenge for cause to a juror is that he is related to the person injured by the commission of the offense within the third degree of consanguinity or affinity. (Code Crim.

Proc., Art. 636, sub div. 10.) Second cousins are related to each other within the third degree. (W. & W. Con. Rep., p. 267; Reed v. The State, 11 Texas Ct. App., 587; 1 Bouv. Law Dic., pp. 299, 300.) It was the defendant’s right, therefore, to have the juror in question stood aside, and he alleges that he would have exercised this right if he had known of the existence of said relationship.

An effort was made on the part of the prosecution to show that defendant knew, or might have known by the use of reasonable diligence, of said relationship; but we do not think the evidence shows such knowledge ' on the part of defendant, nor that it shows any want of diligence on his part to obtain such knowledge.

Of course, if defendant accepted said juror with a knowledge of such relationship, or if he accepted him without inquiring in regard thereto, he could not be heard to complain, but, as presented to us, the facts appear to be that he was entirely ignorant of the existence of this cause of challenge to the juror, and that such ignorance was hot attributable to neglect on his part.

Such being the case, the defendant, without his fault, has been tried by a jury which the law does not regard as impartial, and has therefore been deprived of a right guaranteed by the Constitution to every one charged with crime. (Bill of Rights, sec. 10.) We are of the opinion that upon this ground of the motion the new trial should have been granted. Opinion delivered December 8, 1886. We are further of the opinion that the court should have granted a new trial because of the insufficiency of the evidence.

As presented to us in the statement of facts, the evidence is unsatisfactory, and fails to prove beyond a reasonable doubt the guilt of the defendant. We find no -material error in the charge of the court. It is a full, fair and correct exposition of the law of the case. Because, for the reasons stated, the court erred in not granting the defendant a new trial, the judgment is reversed and the cause is remanded. jReversed and remanded.