Taylor v. State ( 1924 )

DISSENTING OPINION. After the jury had unanimously agreed that appellant was guilty, and had voted for penalties aggregating 222 months, Webb, a juror who had voted for the lowest penalty, made the statement that appellant had been convicted in the Federal court. The foreman and each of the other jurors who testified on the hearing of the motion for new trial at once informed Webb that such statement was improper and this ended the matter. No other reference to the fact or discussion thereof appears. Thereafter the jury agreed on a penalty of 15 months, or an aggregate of 180 months, — an average of nearly 4 months per juror less than had been voted for on the ballot which was taken before Webb made his remark.

For this remark of Webb my Brethren think this judgment should be reversed and remanded. I am not able to bring myself in agreement with their opinion. They quote Art. 843 of our C. C. P., which forbids allusion to the former conviction of the accused, and also states that same shall not be taken as a presumption of guilt at a subsequent trial, and also in the opinion they say concerning the remark made by Webb to his fellows, "that the appellant had been convicted of another offense like the one on trial, was untrue." Webb did not state to his fellow jurors that appellant was convicted for the same, a similar or like offense; nor in my opinion is the quoted article of the Code at all applicable by reason of the very fact just stated. What Webb said was not a reference to a former conviction of this appellant for the same or a like offense. He swore upon the hearing that he did make the statement that she had been convicted in the Federal court. Of what offense he did not state, nor does any witness on the hearing claim that he did. All the jurors who gave testimony agree that at once it was said by all of them that the statement should not have been made, and it was also agreed by all of the jurors that it should not be considered. Webb swore as follows:

"It was agreed by everybody there that they should not consider that at all. I don't remember what Mr. Brown said only that we couldn't consider it. I did not consider the fact that she had been convicted in Federal court. I knew it, that was all. I did not take that into consideration at all; after they said what they said. I had not taken it into consideration so far as I was concerned before that. I just mentioned that to the jury."

Juror Fuller said he merely heard the words "Federal court" and heard foreman Frazier say they could not consider it; that he did not hear the word "convicted." He heard Frazier, and another Fuller on the jury, Bowen and Weinert speak up and say the jury could not consider it. This juror said also that he stated that it could not be considered, and that he himself did not consider it. Juror Bowen testified and said he heard the statement which Webb testified that he made, but did not pay enough attention to it at the time to know who said it. He testified that he said "We cannot consider that" and that he did not in fact consider it in making up his verdict. Mr. Frazier, foreman of the jury, said he heard Webb's statement as above detailed and at once spoke up and said the matter should not have been mentioned and could not be considered; that he heard others say the same thing; that it was not considered by him. Mr. Frazier said he voted for two years on the first ballot but after Webb's statement was made he came down to 15 months. No other jurors save these four testified on the hearing of the motion for new trial, and this much of their testimony is reproduced for the purpose of showing, first, that there was no reference to a former conviction of this or a similar offense, and that hence Art. 843, C. C. P. has no application; also to make plain my position that the remark was but a casual or incidental statement by a man who was favorable to appellant, somewhat similar to Freeman's case,95 Tex. Crim. 515, — and that his remark was not intended to and did not hurt appellant, which fact is borne out by the entire record.

We have a case in which not only was there no argument about the statement made, and not only did each juror who gave testimony swear that he did not consider it, but also one in which it is in testimony that all the jurors agreed that it should not be considered, and that thereafter the jury voted a less penalty than had theretofore stood for. The juror who had been for five years thereafter came down to 15 months. Jurors who had been for two years and two and one half years came down to 15 months. As stated above, the penalties voted on the ballot taken before Webb spoke, aggregated 222 months, and those voted after he made the statement, aggregated 180 months. This fact brings the case squarely within the rule of Smith v. State, 52 Tex.Crim. Rep., which is contended for in the concurring opinion of my brother Hawkins.

There are other well settled principles of practice which a reversal of this case under its facts seems to me to seriously threaten. Art. 841, C. C. P., provides that the State may take issue with the defendant upon the truth of the causes set up in the motion for new trial, in which case the court shall hear evidence and determine the issue. We regard it as settled that when the judge hears evidence upon the proposition of motion for new trial, this evidences the fact that the issue is joined. This court has always held that unless the discretion confided in the trial court in this matter is shown to have been abused, the judgment refusing new trial should be upheld. Freeman v. State, 95 Tex.Crim. Rep.; Newton v. State, 94 Tex. Crim. 382. In the latter case the jurors referred to appellant's failure to testify. Upon the ground that the fact was not generally discussed and that it was not considered against him by the jury, this court, in an opinion by Justice Hawkins, upheld the action of the lower court in refusing a new trial. See also Todd v. State, 93 Tex.Crim. Rep., where in an able and well considered opinion by Presiding Judge Morrow occurs the following:

"In other words, it is within the judicial discretion to overrule a motion for new trial based on the claim of misconduct of the jury and the action of the trial court will not be overturned on appeal unless it be shown to be clearly wrong. Douglas v. State, 58 Tex.Crim. Rep.; Vernon's Texas Crim. Stat., Vol. 2, p. 792; Watson v. State,82 Tex. Crim. 305; Alexander v. State, 84 Tex.Crim. Rep.; Reese v. State, 87 Tex.Crim. Rep.; Barnard v. State,87 Tex. Crim. 365."

Numberless authorities are to the same effect.

Again, this court always declines to overturn the judgment of the trial court when the complaint is of a casual or incidental reference to some forbidden matter. Macon v. State,52 Tex. Crim. 341; Baines v. State, 43 Tex.Crim. Rep.; Cooper v. State, 72 Tex.Crim. Rep.; Walling v. State,59 Tex. Crim. 279; Coffman v. State, 73 Tex. Crim. 295. I shall discuss this further in connection with the following matter. There are expressions in the opinion of my Brethren which seem to commit this court to the proposition that if a juror in the jury room gives expression to a fact dehors the record, which might be deemed of hurtful effect, the making of such statement would be sufficient of itself to hold the juror partial or biased, and that the whole jury must therefore occupy the same status so that their verdict against the accused necessarily deprives him of a trial by a fair and impartial jury. Concretely, that proof that Webb said in the jury room that appellant had been convicted in the Federal court, would ipso facto characterize him as an unfair juror and necessitate the granting of a new trial. This seems to me to be going far beyond what this court has ever said, and beyond what it ought to lay down as the law. There is nothing in this record to justify any inference that Webb was hostile to appellant. She was shown by overwhelming testimony to have openly and notoriously violated the law and to have sold liquor continuously and almost in wholesale quantities, and yet juror Webb in the face of this proof and of what he believed to be his knowledge that she had been convicted for some character of offense in the Federal court, voted to give her the lowest penalty. In the Smith case, supra, the reference by a juror to the former trial of appellant and the penalty then inflicted, was not held to render him unfit or to necessitate a new trial upon the ground that this showed hostility toward the accused. Nor was this the conclusion in the Cox case, the Ray case, the Morrison case, the Todd case, supra, or the Hallmark case, 230 S.W. Rep. 697, or the Wood case, 86 Tex.Crim. Rep., or the McKinzie case, 97 Tex.Crim. Rep.. My Brethren say of Webb's statement: "If it be conceded that the supposed fact had weight with him, and that he reported it so that it might influence his fellows against the accused, how can it be held that he was impartial?" To my mind there is no warrant for saying that it is conceded that the supposed fact had injurious weight with Webb, or that he reported it to his fellows to injure appellant. Every fact as well as every inference in the case is against such imputation. Webb had voted for the lowest penalty. Some of the jurors were for higher terms, one being for five years, the highest penalty. Webb said, "This woman has been convicted in the Federal court." He got no further. No one asked him on the hearing what his purpose was in making this statement. It would seem in entire keeping with his attitude as shown by the record, bar him to have intended to use the fact stated as an argument for mercy and to induce the others to come to his view point and give her the lowest penalty. This was the purpose manifested in Smith's case, supra, in which two jurors holding out for a higher penalty were induced to join their fellows in a lower term upon being told the result of a former conviction. In Jack's case, 20 Texas Crim. App. 656, the juror who made the improper statement complained of, insisted in the jury room upon a higher penalty than some of the others wanted to inflict, but finally came down one year when they came up one, and the verdict was for three years. This juror was not held disqualified, nor was the judgment reversed, but on the contrary it was affirmed by a court composed of Hurt, White and Wilson. In Parker's case, 30 S.W. Rep. 553, Judge Henderson says: "The mere mention or discussion of other crimes with which the defendant may have been connected, where no prejudice against defendant appears to have resulted, will not reverse a case." So in Ray's case, 35 Tex.Crim. Rep., the same learned judge, speaking for the court, said:

"But we do not hold that the language here used by the juror, in the absence of further showing by the appellant that such general knowledge created in his mind such prejudice against the defendant as that he could not give him a fair and impartial trial, did not disqualify the juror; that is, that it presents to us no sufficient ground for reversing the case. It has been held that the discussion of other crimes than that charged against the defendant, unless such discussion is shown to have influenced some of the jury, is no ground for a reversal."

Again in Morrison's case, 39 Tex.Crim. Rep., where the accused got twenty years for murder, this court then composed of Hurt, Henderson and Davidson, says, in discussing the proposition as to what ought to be done when a juror had said in the jury room that another jury had tried the accused and given him twenty years: "The mere statement of that fact in the jury room may not have operated to the prejudice of appellant. Before the case should be reversed on this ground, some prejudice must be shown. The bare statement that a former jury had tried the case and rendered a certain verdict against defendant, would not ordinarily cause a reversal." In Hallmark's case, 230 S.W. Rep. 697, Presiding Judge Morrow, speaking for the court, in discussing a case where the testimony showed that while the jury were in retirement one juror said he had heard appellant had been accused of being connected with the theft of $201.00 from a Mr. Johnson at the Greer hotel, said: "A transgression against the statute (article 837) is not ground for reversal of the judgment where it is such that it could not have affected the fairness of the trial," and then copies from the Smith case, supra, what was said by Judge Ramsey, as appears in our judgment of affirmance. In none of these cases, nor in any others known to the writer, has this court ever said that such a statement as was made by Webb would justify the conclusion that the juror was unfair and that in the absence of some, other showing the verdict of the jury should be set aside, and certainly none have said that when these jurors appear as witnesses before the trial court, in a case such as this, and the evidence was heard by him and deemed not of sufficient merit to call for the granting of a new trial, that the discretion of the trial court should be held to have been abused.

There is another proposition: It must appear from the facts before the lower court that injury did or was likely to result to the accused so as that we must conclude it error for the lower court to have refused a new trial before such judgment will be reversed. In the case before us the State assumed the burden and showed by every juror who appeared that he did not consider the statement of Webb, and was not influenced thereby. The State went further and showed that all of the other jurors agreed not to consider it. In addition, it was also shown that after the statement was made the jury gave appellant a penalty less than had been voted for on the preceding ballot.

I have written this much because, with every respect and esteem for my Brethren, I feel that the precedent here to be established is a dangerous innovation and contrary to all former announcements by this court. I, therefore, dissent from their conclusion in granting this motion for rehearing. I believe with Judge Ramsey in the Smith case, that the facts show overwhelmingly the guilt of the accused and that the judgment should not be set aside for a mere casual incidental remark made by a juror which is not shown to have resulted in any prejudice to the accused.