Birdwell v. State , 106 Tex. Crim. 618 ( 1927 )

The appellant was convicted of theft of property over the value of $50.00 — to-wit, an automobile — and his punishment assessed at two years in the penitentiary.

The record discloses that the appellant entered a plea of guilty and filed application for a suspended sentence. There is no statement of facts in the record, and we find but two bills of exception.

In bill of exception No. 1 complaint is made to the action of the court in communicating with the jury after the charge had been delivered to them and while they were deliberating upon their verdict. It is contended by the appellant that the court opened the door of the jury room, thrust his head inside, and had a conversation with the jury out of appellant's hearing and presence, the substance of the conversation being unknown to him. This bill is qualified by the court, without objection by the appellant, to the effect that he was called to the door of the jury room, which was but a few feet from the defendant and a few feet from the judge's stand, but that he stood outside the jury room and in the district court room, and that, while court was in session and in the presence of the defendant, the foreman of the jury called his attention to an error in the charge relative to the minimum punishment for this offense, which he corrected. This bill, as qualified, shows no error.

Bill of exception No. 2 complains of the conduct of the District Attorney while cross-examining one of appellant's character witnesses, the complaint being made to the questions propounded to said witness. However, the bill fails to set out the answers, if any, given by the witness. This bill is also qualified by the court to the effect that the jury were instructed not to consider anything about the conduct of the defendant unless he had been indicted for an offense involving moral turpitude. The objectionable questions complained of by appellant were relative to other thefts committed by the appellant, and the District Attorney was asking the witness if he had heard of same, including the one for which appellant was on trial. It is proper, when plea for suspended sentence is filed, to inquire concerning the reputation of the appellant up to the date of the trial, but improper for the state to inquire of character witnesses, on cross-examination, as to what they have heard relative to the offense for which the accused is on trial. Goss v. State, 284 S.W. 578. However, this bill, as presented and qualified, does not, in our opinion, show reversible error, and especially in the absence of a statement of facts.

After a careful examination of the entire record, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.