Somers v. State , 73 Tex. Crim. 549 ( 1914 )

We can not agree to the opinion of the Presiding Judge and think the case should be reversed. It is shown that the juror, without the knowledge of the officer in charge of the jury, intentionally left the jury, and he says he went a distance of between three and four blocks to where his horse was tied; that he then got on his horse and went a distance of seven or eight blocks to Mr. Machett's stable and turned his horse over to the person in charge of the stable, and told him to keep him and feed him. That he did not then know where the remainder of the jury was, and he went in search of them, traveling the streets of the town of Brenham. That there were lots of people on the streets; that he saw one McAdoo, who was not an officer, and who told him they were looking for him, and told him the jury was in a certain restaurant, and he went to this restaurant and joined the jury. The record shows he was separated from the remainder of the jury for from fifteen to thirty minutes. In the opinion by Presiding Judge Prendergast it is admitted that under all the decisions where a separation is shown, the burden is upon the State then to show that nothing improper took place during the time the juror was separated from the others, and all the cases cited in the opinion so holding, and in which it was held not to present reversible error the State assumed the burden, and brought the witnesses before the court. In this instance the State did nothing of the kind. The defendant placed the juror Breedlove on the stand and proved the separation, and proved by him that he thought he could "get back before the officer found it out"; that he saw lots of people, but denied he spoke to but two men, McAdoo and the man in charge of the livery stable. The State called neither McAdoo nor the man at the stable to the witness stand. It contented itself with proving that the juror first voted for an acquittal, and then for conviction and two years in the penitentiary. If anything improper took place, the juror could hardly be expected to tell about it, and a juror, "like Caesar's wife, should be above suspicion." The court has gone as far as it should go in holding that if the prosecution takes the laboring oar and shows that the separation was temporary, unintentional, and the juror came in contact with no one on the outside, or if he did come in contact with anyone to bring such person before the court, and fully investigate all that took place while the juror was separated from the others, it presents no reversible error. In this case we have a man who intentionally slipped off from the others, hoping to get back before his absence was discovered, he says. It is further shown that he was traveling up and down a street filled with people, going about alone. The Legislature in providing that "after a 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 defendant, and in charge of an officer," meant no separation should take place unless an officer was with the juror. This statutory law prohibits any separation unless the juror is accompanied by an officer. As before said, our court has gone a long way in order to uphold the trial court, in holding that after a separation is shown to have taken place, that if it is then shown that the defendant suffered no injury, the case will not be reversed. This statute was passed, we think, as much to protect the public as the defendant. The public has a right under it, for it is of the highest public importance that proper punishment be meted out to those guilty of crime, and if all that was necessary to be shown was that the "defendant got the lowest punishment," then the fact that a juror was "influenced" to vote for an acquittal, but if he could not secure an acquittal, then compromise on the lowest punishment, and when that was shown, no further inquiry be made might result in untold harm. There may be some conflict in the decisions, but not any very serious one we think. It has always been held that an incidental separation, where the juror came in contact with no outside person, would not be cause for a reversal; that talking over the telephone would be no ground for reversal, where the parties were brought before the court and detailed the conversation, although highly improper; that when the separation was caused by sickness or some unavoidable cause, or incidentally arose, and the parties were brought before the court and examined, and the trial court found that nothing improper had taken place, we would not reverse his action. But we do not think the authorities have gone so far that where a juror intentionally slipped off, traveled the streets of a town, on which many people were gathered, and where he admits speaking to two, and neither of these two brought before the court, that we should lend our sanction to it. It opens the door too broadly, and would in effect render, meaningless that provision of the Code, for such holding would mean that if a juryman who intentionally absented himself should first vote for acquittal, and subsequently agree to a conviction for a minimum term, no testimony other than that of the juryman was necessary, and, of course, he would not admit improper conduct on his part. We are of the opinion that this is such a separation as the law prohibits, and the State has not met the burden of showing nothing improper could have or did take place, and the case therefore should be reversed. McCampbell v. State,37 Tex. Crim. 607; Boyett v. State, 26 Texas Crim. App., 689; Defriend v. State, 22 Texas Crim. App., 570; Neal v. State,50 Tex. Crim. 583; Barnett v. State, 50 Tex. Crim. 538; Gant v. State, 55 Tex.Crim. Rep., and cases there cited.

The judgment will be reversed.

Reversed and remanded.