majority">White, J.

Appellant in this case was indicted for the murder of Alfred H. Bledsoe. The murder is alleged to have been committed August 1, A. D. 1877. At the February term, A. D. 1878, of the District Court of Delta County the cause came on for hearing, and, on the seventh day thereof, resulted in the conviction of defendant of murder in the second degree, with his punishment affixed at imprisonment in the state penitentiary for a period of ten years.

The number of bills of exception saved and errors assigned show the great care and diligence exercised by coun*453sel for defendant at every step taken in the progress of the trial, and we regret that, in our investigation of the case on this appeal, we have been furnished by them with neither oral argument or brief, to aid in the determination of the questions raised. We have endeavored, however, to give to each supposed error the consideration it demanded, and our conclusion upon the whole record is that there are but one or two questions, really, which require any discussion, the others having been frequently passed upon and adjudicated, and being now no longer open to controversy.

1. The objection to the manner in which the special venire was drawn does not show the facts, by bill of exception or otherwise, until raised for the first time on the motion for a new trial, and the objection, as there stated, is not supported by evidence in the record. Objections to the mode and manner of drawing and impaneling the jury should be made by challenge to the array, or challenge to the particular juror, as prescribed by the Code of Criminal Procedure. Pasc. Dig., arts. 3031-3040. Such challenges should be made at the time the jury are being impaneled, and are not available, except in certain exceptional cases going to the qualifications of the particular juror, on a motion for a new trial. With regard to the ruling of the court in requiring the defense to pass upon the jurors severally, the correctness of the ruling and practice is made evident by reference to the following authorities: Horbach v. The State, 43 Texas, 242; Taylor v. The State, 3 Texas Ct. App. 169, and Hardin v. The State, decided at the present term, ante, p. 355.

The third and fourth errors complained of, with reference to the action of the court in connection with the jury, may be stated concisely as follows: Shortly after the jury was accepted and impaneled, but before any evidence was introduced on either side, the attention of the court was called to the fact that one of the jurors had been taken sick. De*454fendant proffered to discharge the juror and have another called in his stead. A physician examined the juror, and he and the juror both came to the conclusion that, unless the juror got worse, he would be able to sit throughout the trial. With this understanding the trial proceeded, when, upon the evening of the same day, the juror grew so much worse as to be unable to sit longer, and was discharged by the court. Defendant then asked that the whole jury should be discharged, and objected to being tried by eleven men. His objection was overruled, and he saved a bill of exceptions. It is not made to appear how, if at all, the ruling inured to the prejudice or special injury of the defendant. The rule is now settled that, “ no prejudice to the appellant appearing to have resulted from the rulings of the court below in organizing the petit jury, and no infringement of the jury law in force when the trial was had being apparent, such rulings present no question necessary for revision.” Dixon v. The State, 2 Texas Ct. App. 530.

In this instance no rule of law was infringed ; on the contrary, it is provided, both in our Constitution and statute laws, that a verdict in certain contingencies (of which one is here presented) may be rendered by less than the whole number of the jury. The constitutional provision reads:

“ Grand and petit juries in the District Courts shall be composed of twelve men. * * * When, pending the trial of any case, one or more jurors, not exceeding three, may die or be disabled from sitting, the remainder of the jury shall have the power to render the verdict; provided that the Legislature may change or modify the rule authorizing less than the whole number of the jury to render a verdict.” Const., art. 5, sec. 13.

In conformity with the authority here conferred, the Legislature, at its next session thereafter, did provide that “ no verdict shall be rendered in any case in the District Court whereby the rights of any citizen shall be affected, except *455upon the concurrence of all the jury (unless during the trial one or more jurors, not exceeding three, may die or be disabled from sitting, in which event the remainder of the jury shall have power to render the verdict) ; but when the verdict shall be rendered by less than the whole number, it shall be signed by every member ®of the jury concurring in it.” Acts 1876, p. 78, sec. 19. In the case at bar the verdict was signed by the eleven remaining jurors. The discharge or retention of the juror was a matter addressed to the sound discretion of the court, and the explanatory statement of the judge to the bill of exceptions shows that that discretion was not only not abused, but that it was exercised with all necessary caution.

The main errors complained of with regard to the rejection of testimony, shown by the several bills of exception, relate to proposed evidence of acts and declarations of defendant after the homicide. The State did not put in evidence any part of his declarations made to the defendant’s witness Stell, and, therefore, he was not entitled to the conversation had with that witness about the homicide the evening of the day it was committed. A party cannot, in this manner, manufacture evidence in his behalf. Harmon v. The State, 3 Texas Ct. App. 51. Nor did the State attempt to prove the flight of defendant as tending to establish his guilt; and the evidence sought to be introduced by him to show where he had gone, and what his intentions were in going, were clearly irrelevant and incompetent. 1 Whart. Cr. Law, sec. 714; The People v. Rathburn, 21 Wend. 509; Campbell v. The State, 23 Ala. 28.

By bill of exceptions No. 12 it was urged that the court erred in permitting the written testimony of a witness, taken before the examining court, to be read to the jury — the witness having died since giving the evidence. This was not error. Johnson v. The State, 1 Texas Ct. App. 333.

*456We deem, it unnecessary to notice the other errors complained of, inasmuch as they present no new or unsettled questions. The charge of the court was a very full and explicit exposition of the law of the case. Defendant did not except to it, and the only additional instruction asked by him was given, as asked, by the court.

With regard to the evidence, whilst it is entirely circumstantial, and in. some respects contradictory, we are forced to the conclusion, from a most careful study of it as we find it in the statement of facts in this record, that the jury did not err in finding the defendant guilty. If there are any extenuating or mitigating circumstances, they have not been shown.

We believe the defendant has had a fair and impartial trial, and see nothing to warrant us in interfering with the judgment. It is, therefore, affirmed.

Affirmed.

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