Arnold v. State ( 1945 )

Appellant again insists that the trial court should have given his requested instruction relative to whether or not the cow in question, alleged to have been stolen, was a stray cow, and therefore could not be the cow purchased from Lindau, and in the possession of Mr. Schulze. We do not think the testimony called for such an instruction. Appellant testified that this cow was purchased by him from a Mexican named Juan, and she was the same cow found in the possession of Mr. Smith. This cow had certain color markings and brands, and horns, one of them being a slipped or crumpled horn. The only stray cow mentioned in the testimony was a mulley or no horned cow. Appellant's testimony, as well as the State's testimony, leaves no confusion as to the cow around which this prosecution is based.

The bills of exceptions relating to the asking of leading questions to certain witnesses do not impress us with any serious import. Many of these questions complained of were possibly repetition of testimony previously given by the witness, but possibly gone into at more detail, after certain statements contradictory thereof had been offered by appellant. These statements could not have been aught but a clarification of what the witness had previously referred to in less exact terms than desired by the State in endeavoring to rebut some of appellant's testimony.

The appellant offered the testimony of two certain jurors who testified on the motion for a new trial that they considered the fact of an indictment as some evidence of guilt. It is also shown, however, that each juror was emphatic in the statement that, although he considered the indictment as a circumstance of guilt, he based his conviction solely upon the evidence that came from the witness stand; one of the jurors, Mr. Wiest, said that the proof that convinced him as to guilt came from the witness stand. Mr. Gebert, the other juror, also said that he considered the indictment as an evidence of guilt, yet he based his verdict upon the testimony that was given from the witness stand; when taken on the jury he had no opinion, and voted appellant guilty beyond a reasonable doubt from the evidence that came from the witness stand. There was further testimony in which the juror was attempting to impeach his own verdict by saying that he was still unconvinced as to who owned the cow alleged to have been stolen, but our decisions have long had unanimity in holding that a juror, having once agreed to a verdict of guilt, cannot come in thereafter and be allowed to impeach that verdict by saying that he did not believe in the guilt of the accused. See Branch's P. C., pages 296-297. To thus allow an impeachment of verdict would result in confusion, and open the way for mistrials in many cases, and unending litigations.

The statement of the two jurors that they considered the indictment as a circumstance of guilt finds an association with the statement in each instance that they only considered the evidence alone that came from the witness stand. Of course the indictment was present at the trial, and surely read to the jury, and surely taken with them in their deliberations in the jury room, and while same is not to be taken as a circumstance of guilt, nevertheless a mind untrained in legal parlance and procedure would necessarily give some prominence to an indictment; yet the same rule that prohibits the impeachment of his verdict by a juror operates herein and will not allow the juror to say what animated his mind to the detriment of his verdict properly returned into open court.

We have said in Weatherford v. State, 31 Tex.Crim. R.,21 S.W. 251, that:

"Upon grounds of public policy, courts have almost universally agreed upon the rule, that no affidavit, deposition, or other sworn statement of a juror, will be received to impeach a verdict, or to explain it, or to show on what grounds it was rendered (2 Thompson's Trials, section 2618, and authorities cited), and the wisdom of the rule needs no argument to support it."

Also see Pilot v. State, 38 Tex.Crim. R.; Montgomery v. State, 13 Tex. App. 74[13 Tex. Crim. 74]; Bacon v. State, 61 Tex.Crim. R.. Our Supreme Court, in the year 1865, in Johnson v. State, 27 Tex. 758, said: "No case has yet occurred in this State wherein the courts have tolerated such affidavits * * * to impeach their verdict. If ever admissible they can only be allowed in an extreme case and under an impertative necessity for the accomplishment of justice." The rule rests upon the obvious ground that were it otherwise few verdicts would escape attacks from jurors under influences that would be brought to bear upon them after their discharge by the court.

Appellant insists that the statements of such two jurors was the reception of further evidence in their jury room, and therefore comes under subdivision 7 of Art. 753, C.C.P. We are not in accord with this contention, but are impressed with the idea that such statements should be classified as an attempt to impeach their own verdict, and such proceedings cannot be allowed.

The facts merely show that appellant sold a cow that Mr. Schulze and one other said belonged to Schulze. Appellant, when his right to such cow was challenged, claimed to have purchased her from a Mexican named Juan, not knowing she was stolen. The trial court placed upon the State the burden of disproving the reasonableness of such explanation, and the jury's verdict seems to indicate that the State was successful in so doing.

The motion is therefore overruled.