¶1Opinion on Petition to Rehear
¶2Plaintiff in error urges us to grant his petition to rehear, stating that this Court overlooked certain material propositions of law. The following discussion will show that we think the petition to be without merit, and it must therefore be denied.
¶3Assuming that the grounds for granting a mistrial are analogous to the grounds for granting a new trial after a verdict has been rendered, petitioner offers this propositon: A juror who could be challenged for cause, his disqualification being propter defectum as opposed to propter affectum, could not be disqualified and a new trial granted after verdict had been rendered. Walker v. *392State, 118 Tenn. 375, 99 S.W. 366, (1906). The contrary is of conrse, true: if the juror’s disqualification was such that his sitting on the jury, hearing and deciding the case, was clearly prejudicial and unfair to defendant, then the error was propter affectum and a new trial should be granted. Durham v. State, 182 Tenn. 577, 188 S.W.2d 555, 160 A.L.R. 746 (1945).
¶4It has been held that where the simple fact appeared that the brother-in-law of the sheriff who testified in the case sat on the jury, there could be no objection propter affectum as grounds for a new trial after a verdict. Farmer v. State, 201 Tenn. 107, 296 S.W.2d 879 (1956). While these cases could perhaps influence the trial judge in whether or not he should grant a new trial, or grant a mistrial before the verdict is reached, without a preservation of the evidence upon which he acted, we must presume that he acted properly and in accordance with the law.
¶5It is further claimed that the State is estopped to complain of prejudice that would warrant a mistrial because it had an opportunity to question and disqualify any jurors that may have been Mn to the witnesses, Mrs. Ellen Long and Lester Brown. True, there is a waiver of challenges propter defectum if they are not made upon voir dire and the disqualifications are known or could have been ascertained with reasonable diligence at the time. Lindsey v. State, 189 Tenn. 355, 255 S.W.2d 533, 15 A.L.R.2d 527(1949); Monday v. State, 160 Tenn. 258, 23 S.W.2d 656 (1930).
¶6However, the state prosecutor swears in his affidavit in support of the motion for a mistrial that disqualification information was not discovered by the *393State until later on in tlie trial. Apparently the evidence sustained this statement or at least the trial judge did not feel that any prejudice appeared until the juror-related witnesses testified as they did. At any rate, without a bill of exceptions, we must presume the judge exercised his discretion properly. In this instance, we might add that it should not be necessary to examine the mind of each juror to determine that prejudice was a fact and not just a reasonable inference.
¶7Finally, the petitioner asserts that we overlooked his argument that the Court below erred in sustaining without a hearing the motion to strike his plea of former jeopardy. Petitioner claims that by the Court doing this, he was unable to prove the allegation in his plea that there was no evidence before the Court in the first trial to warrant a mistrial; therefore, since a motion to strike admits the allegations in the plea, these allegations must be taken as true, and this Court must thereby agree that there was no evidence to support the declaration of a mistrial. Gang v. State, 191 Tenn. 468, 234 S.W.2d 997 (1950). Thus he argues that since this allegation is to be taken as true, it is sufficient in law to sustain the plea of former jeopardy.
¶8This argument is without merit under the circumstances of this case. If it can be said that the allegation that there was no evidence to support the declaration of a mistrial is a fact allegation and not a conclusion of law — a conclusion of law is not admitted by a motion to strike — then it may very well support his plea. However, no bill of exceptions is available to give evidence of this allegation, and it would be unreasonable to force the trial judge, who is the same in both trials, to *394testify to himself about what evidence he heard support^ ing his decision to declare a mistrial.
¶9Actually, the minutes of the Court indicate that petitioner’s plea of former jeopardy was considered again on the hearing on his motion for a new trial after the conviction:
“At this hearing defendant re-introduced his plea of former jeopardy with attached affidavits. The Court remarked that he had read and carefully considered the plea of former jeopardy with affidavits thereto attached. Argument was heard by the Court by counsel for the State and for the defendant. This was all the evidence on the motion.”
¶10We think the plea was given more than adequate consideration. We must, as we have said before, assume that the evidence heard by the trial judge, at the time he granted a mistrial, supported his decision.
¶11The petition to rehear is, therefore, denied.