Cravens v. State , 55 Tex. Crim. 519 ( 1908 )

This is an appeal from a conviction for murder in the second degree with a penalty of nine years.

No statement of facts accompany the record in this case. In the record we find two bills of exceptions — one is that the judge absented himself from the courtroom while the case was being tried, and, second, the jury reached their verdict by lot. 1. In regard to the first question the facts show that while one of counsel for appellant was addressing the jury someone called the judge to the telephone. This telephone was located in an anteroom, which opened into the courtroom and was situated some sixteen feet from where the jury sat and the courtroom was in view of the judge all the time. The judge was absent some fifteen minutes, and in his qualification to the bill states that while in said room he had the case under control and had the jury and counsel in view while he was talking over the telephone. In the well considered case of Bateson v. State, 46 Tex. Crim. 34, 80 S.W. Rep., 88, this court, speaking through Judge Henderson, says: "This question has been before a number of tribunals in the various States of the Union and the current of authority in criminal cases is one way with a very few exceptions. That is, in the trial of felony cases, especially in capital cases, the absence of the judge from the courtroom during the trial will constitute cause for reversal in case of conviction. This presence of the judge, who is the presiding genius of the court, is construed not to mean absolutely within the courtroom, but so near as to be within sight and hearing of the proceedings, that is, in such a situation as to retain control of all that transpires during the trial. Otherwise, there is no way by which the court can be informed as to the errors that may occur. For as to those he does not get his information by proxy, but he must judge of the matter by his own car and his own eye. If by his absence, though temporary, the reins escape him and he loses that control and supervision of the court, which is so necessary to safeguard every right of the defendant in the particular case and a conviction follow, it will be set aside, notwithstanding no injury can be pointed out." The facts of this case are dissimilar to the Bateson case. In the Bateson case the judge absented himself from the courtroom, went into an anteroom, closed the door and remained in there some three hours. While in this case the door was not closed and the judge had in view and control the proceedings of the case and was so near as to be within sight and hearing of the proceedings and was in such situation as to retain control of all that transpired during the trial. We therefore hold that this exception is without merit, and to authorize a reversal because of the absence of the judge, the record must disclose that said absence was of such a character as to show affirmatively that the proceedings were out of view and hearing of the court and that the judge was in such position during his absence as to lose control of the proceedings of the trial. See Lewis v. State, 15 Texas Crim. App., 647.

The next question presented by appellant is the misconduct of the jury in that the jury decided on the penalty that should be given the defendant by lot, that is, each man put down the number of years, and they added this up and divided by twelve and the result was the verdict agreed upon. The court below heard testimony upon this issue, and on the trial of the issue two of the jurors, to wit, Will Rogers and J.P. Wood, testified. The substance of their testimony is as follows: Someone of the jurors suggested that each man put down the number of years that he thought the appellant should have and add their sum total up and run twelve through it and see how many that would give. Rogers further testified: "Before we did this we did not agree. There was some of them that would not agree that that should be the verdict. We just wanted to see how it would run through and we tried it three times, and the last time, after some discussion, we decided on nine years. We did not get the same result each time because some of the jurors changed their numbers. They made them lower and finally it came out nine years and a fraction, and then after something like thirty-five or forty minutes' discussion, we agreed on nine years, but before we run twelve through the number it was not understood that that should be the verdict. We were simply experimenting with it. My impression is that I was the one who suggested this experiment, but four or five of the jurors spoke up and said they would not be bound or agree to any result that might he reached in that way." The juror Wood testified as follows: "Q. If in determining the term you would give defendant, if each member put down the term he wanted him to have and you divided by twelve, just tell me fully how you did that and what the agreement was and what should be the effect of your proceeding that way? A. Well, the way we did in reaching at an average of what the verdict should be, we would take what each man would say and add them together and divide it by twelve, and would get at about what the average would be and then whenever we would do that we would take a vote on all that was in favor of about what that average would be. We did this two or three times, but I will state that it was understood by me, and I think thoroughly with everybody, that there was nothing to that more than just to try to get together. There was no agreement between us that we should be bound by the result, and after this result was reached we voted two or three times and never did agree upon the result reached by this adding and division. There was no agreement that we should be bound by this result, but this was simply done as an experiment." We think this case is unlike the case of Driver v. State, 38 S.W. Rep., 1020. In the Driver case the jury agreed that they should add the number of years that each juror wanted to give the defendant and divide by twelve and the result should be the verdict. This court held that that was reversible error. But the facts of this case are similar to the case of Pruitt v. State, 30 Texas Crim. App., 156, in which this court held that the verdict was not vitiated on proof of the following facts: To ascertain the punishment to be assessed the jury agreed that each juror should state the number of years he was in favor of assessing and that the several numbers thus stated should be added together and the aggregate sum should be divided by twelve and the quotient should be the term assessed by the verdict. This was done and the quotient was five years and seven months. This result was not agreed to by the jury, and after some discussion the jury fixed the punishment at five years. This court held that the verdict was not the result of any agreement entered into by the jury beforehand to determine the penalty by lot. We therefore hold that in order to vitiate a verdict that has been determined by lot the proof must show that the jury made an agreement beforehand and that they should be bound by that agreement, and that whatever results might be ascertained from the agreement should be the penalty affixed. This, as we understand it, would be a verdict that would be improper and such a verdict as the court could not uphold. In this case we do not think the facts show a verdict reached by lot and following the rule laid down in the Pruitt case, supra, we think the point is without merit.

Finding no error in the record, the judgment is affirmed.

Affirmed.

ON REHEARING. March 17, 1909.