Jones v. State , 69 Tex. Crim. 447 ( 1913 )

Appellant was convicted for privately stealing from the person and his punishment fixed at five years in the penitentiary.

The evidence of the State is clear and ample, showing the guilt of appellant.

The court did not err in overruling appellant's motion for a continuance and later for a postponement of the case. The motion and bill of appellant on the subject, as explained by the court, show such a lack of diligence on appellant's part as not to entitle him to a continuance. The qualification of the Judge to the bill is as follows: "Explanation — I do not think sufficient diligence was shown, nor did I believe that the testimony of the absent witnesses were material, or if so, probably true — see where the defendant in the statement of facts contradicts the allegation of this motion by stating that immediately after the loss of the money, the prosecutor and his wife charged the defendant with stealing it. I do not know when I made the order, setting the case for trial, but I do know that I examined the docket, and the envelope containing the papers of the case and found no attorney for them, although I have frequently requested counsel to record their names so that the court could notify them. Further, I sent the clerk of the court to jail to find out who was defendant's attorney, and to obtain the names of the witnesses. The record shows (and the clerk informs me) that the defendant did not tell him who his attorney was, but gave his witnesses' names as follows: Quincy McKinney, works in T. P. yards in Ft. Worth, Texas; negro porter, runs on morning train eastbound on T. P.R.R. out of Ft. Worth. The clerk issued the subpoena and mailed it to Ft. Worth and the Tarrant County sheriff returns the same received February 17, 1912, and after diligent search and inquiry, not found in Tarrant County, Texas. Although Mr. House, attorney, went to Waxahachie without obtaining process, and I did not know that he was attorney until the 19th of February. I did postpone the case until his return on February 20th, when the case was tried. This application was presented by defendant as stated in the bill, and was overruled. To this extent, I approve the bill." Giles v. State, 66 Tex.Crim. Rep., 148 S.W. Rep., 317.

By two other bills appellant complains that the court erred and that the case should be reversed, because the court refused to sustain his challenge to nine of the jurors, under this state of facts: After the jury panel had been examined by both sides, touching their qualifications as jurors to try the case and both sides having struck their lists and handed them to the clerk, who noted down the names of the accepted jurors, nine in number, which nine jurors had been accepted by both sides as jurors to try the case but had not been sworn as jurors, the court permitted them to separate and go to their respective places of business or where they desired from 11:15 o'clock a.m. until 2:00 o'clock p.m. unaccompanied by an officer, and when court convened at 2:00 o'clock p.m. and all of said nine jurors had returned to sit as jurors in the case, the defendant in open court, made a motion to quash the jury panel on the grounds that the court had allowed the jury to separate. The bills nowhere and in no way attempt to show that the nine accepted jurors, who had not been sworn and empaneled, had talked to anyone about the case, or that anyone had talked to them about the case, and nowhere and in no way attempts to show that they were in any way not fair and impartial and competent to try the said case. The sole ground claimed is that because they were permitted to separate and go where they pleased, during the noon hour. The Judge, in approving the bill, stated: "I can not find when it has ever been held in Texas that jurors are to be held in custody by the sheriff until they are empaneled and sworn. In capital cases, of course, they are sworn and empaneled as each is accepted. I instructed the jury not to speak to anyone about the case or allow any one to speak to them during the recess. I want the upper court to direct whether a jury must be confined over night or recess before the jury is completed or before any of them are sworn to try the case."

We have sought diligently to find any case decided by this court or any statute requiring the accepted jurors in such case, as shown, to be kept together in charge of an officer or that because they are not so kept together in charge of an officer that it would result fatally to a conviction and require this court to reverse, and have failed to find any, except the case of Wilcek v. State, 141 S.W. Rep., 88 and appellant's attorneys have cited us to no other case except the Wilcek case. The only statutes we have found, as we think, which bear upon the question, are the following:

"Article 698, Code Criminal Procedure: As each juror is selected for the trial of the case, the following oath shall be administered to him by the court, or under its direction: ``You solemnly swear that in the case of the State of Texas against A.B., the defendant, you will a true verdict render, according to the law and the evidence, so help you God.'"

"Article 699. The court may adjourn persons summoned as jurors in a capital case to any day of the term; but when jurors have been sworn in a case, those who have been so sworn shall be kept together and not permitted to separate until a verdict has been rendered, or the jury finally discharged, unless by permission of the court, with the consent of the State and the defendant, and in charge of an officer."

These articles refer to the organization and empaneling of a juror in a capital case. Another article with reference to the jury separating before verdict, after even being empaneled and sworn and on the trial of the case is Article 746, Code Criminal Procedure: "In case of misdemeanor, the court may, at its discretion, permit the jury to separate before the verdict, after giving them proper instructions in regard to their conduct as jurors in the case while so separated."

With reference to the jury on such subject in felony cases, other than capital, the statute is, Article 745, Code Criminal Procedure: "After the jury has been sworn and impaneled to try any case of felony, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the consent of the attorney representing the State and the defendant, and in charge of an officer."

It is true that our Constitution and Code provides, Article 10, Code Criminal Procedure and Bill of Rights: "The right of trial by jury shall remain inviolate," and Article 22, Code Criminal Procedure provides: "The defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the right of trial by jury in a felony case." The Code of Procedure expressly provides, in the organization of juries in criminal cases, who are incapable or unfit to serve as jurors. Criminal Code of Procedure, Article 692; and also prescribes the questions that are to be asked the jurors when empaneling a jury, the mode of testing their qualifications and the questions to be asked them. Criminal Code of Procedure, Article 687. It also prescribes Article 680: "The defendant may challenge the array for the following causes only: That the officer summoning the jury has acted corruptly and has wilfully summoned persons upon the jury known to be prejudiced against the defendant with a view to cause him to be convicted." But in the next article, expressly provides that when the jurors summoned are those who have been selected by jury commissioners, even such challenge of the array can not be made.

Then Article 837 provides that "new trials, in cases of felony, shall be granted for the following causes and for no other": After giving certain causes which have no application to this question, in sub-division 8, which is the only one applicable to this question, says: "Where, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial * * *"

It is perfectly apparent and clear to us that all the provisions of our law on the subject of jurors to try felony cases were enacted so that a fair and impartial jury may be had. In this case no attempt was made to show that either of the said nine jurors were not fair and impartial. If such had been the case appellant could have made his attack when he first challenged the array of these nine jurors at 2 o'clock p.m. on the day of the trial, or if not then, certainly by a motion for a new trial during the term of the court. But no such attack or claim was made, even by implication, other than the mere fact that the court did not keep the nine accepted jurors together in charge of an officer at the noon recess. No attempt was otherwise made in this case to show, either directly or indirectly, that appellant was in any way injured by these nine persons having been permitted to separate during the noon recess.

Construing all of these articles together we think it is clear and beyond dispute that the law does not require or contemplate that jurors, in such instances, shall be kept together in charge of an officer. Article 699, supra, expressly provides that the court may adjourn persons summoned as jurors in capital cases to any other day of the term, but says, when jurors have been sworn in cases and those who have been so sworn, shall be kept together and not permitted to separate until a verdict has been rendered or the jury discharged, unless by permission of the court with the consent of both parties, in charge of an officer, thereby specifying what jurors shall be kept together, in charge of an officer and what shall not be so kept together, and limits those who are to be kept together to those who have been sworn in the case. Again, Article 745, supra, expressly emphasizes this, in that it says, after the jury has been sworn and empaneled they shall not be permitted to separate, thereby again emphasizing the fact that if it is only the sworn and empaneled juror who is prevented from separating. Clearly and unquestionably if the law had intended that jurors were to be kept together before they were sworn and empaneled, the statute would have said so in clear and unmistakable language. Under the circumstances stating when they should be kept together and not permitted to separate in all cases, as is shown above, excludes the idea that they are to be kept together under any other circumstances and under the circumstances as shown in this case.

We are not without cases decided by this court and the Supreme Court, when it had criminal jurisdiction, of when and how a verdict is invalid where, even the jurors separated after being empaneled and sworn and after hearing a part or all of the testimony in the case, and even when considering their verdict, after hearing all the evidence, argument and charge of the court.

The correct rule is laid down in the case of Jack v. State,26 Tex. 1, which was a capital case and affirmed. The Supreme Court said: "It must be shown that the misconduct or separation has affected the fairness or impartiality of the trial." To the same effect is Wakefield v. State, 41 Tex. 556; also Johnson v. State,27 Tex. 758. In Robinson v. State, 58 Tex. Crim. 550, which was a death penalty case affirmed, this court, through Judge McCord, said: "The mere separation of a jury, pending verdict, is not cause for a new trial; in addition to the separation in contravention of law, it must further be made to appear that by reason of such separation, probable injustice to the accused has been occasioned." In Ogle v. State, 16 Texas Crim. App., 368, Judge Willson, for this court said: "The mere separation of a jury, pending verdict, is not cause for a new trial; in addition to the separation in contravention of law, it must further be made to appear that by reason of such separation, probable injustice to the accused has been occasioned," citing the statute and Davis v. State, 3 Texas Crim. App., 91; Cox v. State, 7 Texas Crim. App., 1; West v. State, 7 Texas Crim. App., 150; Russell v. State, 11 Texas Crim. App., 288.

In Stewart v. State, 31 Tex.Crim. Rep., this court, through Judge Simpkins, said: "It appears that during the deliberation of the jury, and while in the custody of two bailiffs, one of the jurors, E.P. Bass, was allowed to leave the jury room, and, unattended, convey up some bedclothes to the floor above, to the person from whom they were borrowed, then walk across the hall, while upstairs, to a friend's room, and get a drink of whisky, and, upon being asked, stated the jury had not agreed upon a verdict. This, however improper and suspicious, would not of itself warrant a reversal; it not being shown that probable injustice was done."

In Boyett v. State, 26 Texas Crim. App., 689, which was a murder case in which the appellant was convicted for a life sentence, and affirmed, Judge Hurt, for the court, after stating that where a separation of the jury was permitted by the court, over the then objection of the appellant, it would present reversible error, but said: "But in cases like the one in hand, and where the jury separate without permission of the court, to reverse, it must appear that the juror conversed with others about the case, or was guilty of misconduct to the prejudice of the accused," citing Jones v. State, 13 Tex. 168; Jack v. State, supra; Wakefield v. State, supra; March v. State,44 Tex. 64; Defriend v. State, 22 Texas Crim. App., 570.

Judge White in sec. 865, p. 559, of his Ann. C.C.P. says: "To reverse because the jury separated without consent of the court, it must appear that the separating juror conversed with other persons about the case, or committed other misconduct to the prejudice of the accused," citing Boyett v. State, supra, and Taylor v. State, supra. See other cases in this section cited by Judge White.

So that on this question, we hold:

First, the statute in no way requires the court to keep together accepted jurors in a felony case less than capital, when they have not been sworn to try the case; second, that where jurors in such case have been accepted and not sworn in order to successfully challenge any or all of them the appellant must affirmatively show that they have been tampered with while separated, and because thereof they are not fair and impartial jurors and that by such tampering with them he has not had a fair and impartial trial.

We inadvertently held in the case of Wilcek v. State, 141 S.W. Rep., 88, cited above, that such a separation of unsworn jurors was "clearly a violation of the statute." In so holding we were in error and that case on this point is hereby expressly overruled.

Appellant's complaint that the court erred in refusing to give his special charge No. 1, and his bill of exception to that effect, are entirely too general to require this court to consider it. Bird v. State, recently decided; Berg v. State,64 Tex. Crim. 612, 142 S.W. Rep., 884; Ryan v. State, 64 Tex. Crim. 628, 142 S.W. Rep., 878. Besides, as stated by the court there was no evidence calling for any such charge.

No error having been pointed out, the judgment will be affirmed.

Affirmed.

[Rehearing denied February 26, 1913. — Reporter.]