Moore v. State , 94 Tex. Crim. 489 ( 1923 )

Conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Bill of Exceptions No. 1, disclosed that there was pending against appellant three indictments for unlawfully selling intoxicating liquor. They were Nos. 5727, 5732, and 5770. Over appellant's objection, Nos. 5727 and 5732 were passed over, and the instant case, No. 5770, called and tried. It is stated in the bill that the "defendant was taken by surprise as he had made his preparation and was ready for trial in the prior cases against him as they had been turned into Court and appeared upon the docket of this Court," and further that the requirement that the instant case be tried first would result in a prejudice, in that he expected to take the stand in his own behalf, and his cross-examination would reveal the pendency of the other cases. It is further shown by the bill that the appellant did testify as a witness and was called upon by the prosecution to and did reveal the fact that the other cases mentioned were pending against him. In qualifying the bill, the trial judge said that he was informed that the State was not ready for trial in the other cases; that after fully developing the facts preliminary to his ruling, he satisfied himself that no injury would result; that there was no surprise and that no good reason existed for requiring the State to try the other cases and that it was fully shown that there was no evidence which could have been adduced in the instant case by postponing it until the others were disposed of. The qualification also recites that all criminal cases were subject to call on the day that this one was called, of which fact the appellant and his counsel had full notice. The facts are much like those in the cases of Todd v. State, 57 Tex. Crim. 15, and Todd v. State, 57 Tex.Crim. Rep. in which the question raised was decided against the accused, and the proposition asserted in substance that the statute relating to the order of calling cases on the docket is directory and a matter largely under the control of the trial court, and that departures therefrom are not to result in a reversal unless injury or injustice is clearly shown.

No application for a continuance was made setting up any statutory ground for delay. The appellant contented himself with the proposition that in calling the case out of its order the trial court subjected appellant to an injustice and injury in that upon the trial it would be shown that there were other similar prosecutions against him. This contention is met by the qualification of the bill to the effect that a full investigation of the matter was made and that upon the investigation on the facts which are not set out, the trial court reached the conclusion that injustice would not result.

The theory advanced by the appellant that injury must necessarily result from the knowledge of the jury that there were other cases against him is not tenable; such knowledge could be brought to the jury whether the other cases were first disposed of or not, as upon his becoming a witness, the evidence of previous indictments for felonies would be admissible to affect his credibility. No facts are contained in the record indicating that on the trial of the other cases an acquittal would have resulted, and unless this would have occurred, we fail to discern that anything other than delay would have been gained by granting the motion. In other words, if all the cases had been postponed and the two appearing first on the docket were tried first, appellant's position in the trial of the instant case would not have been improved. Under the facts developed and the authorities cited, this court is not warranted in sustaining the point raised.

In another bill it is claimed that the jury was guilty of misconduct in discussing the pendency of the other cases. Upon the hearing it was shown that one of the jurors remarked that "appellant must have been guilty or they would not have him charged in the other cases." Upon making this remark, he was promptly reprimanded and his attention called to the fact that under instruction of the court, no consideration could be given to the pendency of the other cases except as bearing upon the credibility of the appellant. The evidence that appellant was charged with other offenses was legtimately before the jury and an appropriate instruction was given limiting its use. The remark of the juror related to a matter properly in evidence, contained no new and prejudicial testimony against the accused and revealed no fact characterizing the juror making the remark as a prejudiced juror. For these reasons the trial judge did not abuse his discretion in refusing to grant a new trial. Even if the facts be considered and weighed, the clearness with which the court instructed the jury touching the purpose of the evidence and the promptitude with which the jurors corrected the erroneous view of the juror making the remark would characterize the transaction as one which did not affect the fairness and impartiality of the trial. See Jack v. State, 26 Texas Rep. 1; Johnson v. State, 27 Tex. 758; Allen v. State, 17 Tex. Crim. 137. The remark imputed to the juror in question, in our opinion, is to be classified as an argument based upon evidence introduced upon the trial, concerning which it has been said by this court:

"If it were permitted to attack and set aside a verdict because of arguments and reasons advanced and urged by jurors in their deliberations thereon, it would destroy free discussion and interchange of opinions among jurors. It would open the door to a searching inquiry in relation to every act and word which transpired in the jury room, and would subject each individual juror to be placed upon trial before the court to answer for the soundness and propriety of the opinions expressed by him in the jury room."

It is further said:

"There might arise, perhaps, an extreme case in which such a practice would be tolerated to prevent wrong and injustice, but this court would not be willing to sanction the procedure unless it should manifestly appear that the ends of justice imperatively demanded it." (Jack v. State, 20 Texas Crim. App. 661.)

See also Todd v. State, No. 6886, not yet reported.

These declarations we regard as sound and as timely now as when they were uttered. They should be borne in mind by the members of the Bar to the end that the growing practice of putting the jury on trial after verdict, may prevail in cases only where there are cogent reasons for believing that the provision of the statute upon new trials (Art. 837, C.C.P.) has been transgressed. The instant case, we think, is not such an example.

The evidence is sufficient to support the conviction. There was direct testimony of more than one witness that appellant sold intoxicating liquor. He denied it, but the jury believed that the State's testimony was true. They were warranted in so believing; they gave the lowest penalty allowed by law, thereby manifesting an absence of prejudice.

The judgment is affirmed.

Affirmed.

ON REHEARING. May 30, 1923.