Pearson v. State , 145 Tex. Crim. 87 ( 1942 )

KRUEGER, Judge.

The conviction is for the offense of having performed an abortion. The punishment assessed is confinement in the State penitentiary for a term of two years.

Appellant first challenges the sufficiency of the evidence to justify and sustain her conviction. The State’s testimony, briefly stated, shows that on or about the 15th day of February, 1940, the prosecutrix went to the home of the appellant where and at which time appellant performed an abortion upon .her. Appellant took the witness stand and testified in her own behalf. She denied that she performed the act with which she is charged. This raised an issue of fact which the jury decided adversely to her; and we would not, under the facts here presented, be justified in disturbing their verdict.

The only other serious question presented for review relates to the court’s action in overruling appellant’s motion for a new trial based upon the misconduct of the juror, Jack Finney. It was charged in the motion for a new trial that after the jury had been selected and sworn but before they reached a verdict, the juror talked from the window of the jury room to Ralph Townes, B. C. Currin and Johnnie Wilkins; that at another time during the course of the trial, while the jurors were at the Bus Terminal Cafe, juror Finney left the other members of the jury in the cafe, walked out on the sidewalk and went a short distance up the street to a drug store, where he purchased a newspaper, and then returned to the cafe. Upon the hearing of the motion, appellant placed the juror upon the witness stand and elicited from him the fact that he did have a conversation through the window of the jury room with Ralph Townes, B. C. Currin and Johnnie Wilkins; that he did not remember whether or not any officer was present at the'time. However, an officer came up later and cautioned the jurors about speaking to people on the street through the window.

With reference to the incident at the cafe Finney testified as follows:

“I got up and left the rest of the jurors in the restaurant and went outside. * * * I walked next door. I believe it was Barrett’s drug store. * * * I walked up there to the paper rack standing out in front, bought a paper and came back, and the officer did not accompany me.”

With reference to the conversation he had with Ralph Townes, he testified as follows:

“Ralph Townes was standing across the street, and I was standing there looking out; and I don't remember what he said, but he came across the street and I asked him if the Jaycees football had worked out any and he said it worked out Monday night, I believe. That’s all I remember that was carried on; it was about the football team one way or the other. I don’t remember anything said about any other subject.”

As to the conversation with Johnnie Wilkins from the window of the jury room, Finney testified:

“Johnnie said, ‘Well, we are going to keep you up there next week,’ something like that, ‘so you can’t go to the game,’ and I just laughed and didn’t say anything. Wilkins and Currin were standing together. I asked Mr. Currin to call the bakery and have them send my pipe up there, which they did. I did not say anything to Ralph Townes, nor did he say anything to me in any way in regard to the trial on which I was sitting as a juror.”

The witness declared that he did not at any time while he was impaneled as a juror, from the beginning to the end, have any conversation with any one concerning the trial of the case.

The testimony of Mr. Harrison, the officer in charge of the jury, is to the effect that when the juror walked out of the Bus Terminal Cafe, he (Harrison) arose from his seat at the dining table, walked out on the sidewalk and watched him; that if Finney had any conversation with any one in an ordinary tone of voice he (Harrison) would have heard it. He could not say definitely whether Finney bought the newspaper from a man or a boy.

The State called ten of the jury panel but their testimony failed to discharge the burden resting upon it to rebut the presumption of injury.

Ralph Townes was called by the State as a witness and testified in substance that he remembered when the case of the State of Texas v. Mrs. Pearson was tried; that he was going into Palmer’s, and Jack Finney hollered at him and asked him when they were going to play the Jaycees ball game and he (Townes) replied, “On the following Tuesday night”; that he did not have any conversation with him about the case; that he bought a quarter’s worth of cigars at Palmer’s and Finney wanted a cigar and he (Townes) tried to throw it to him but could not do it; that Finney did not make any comment to him concerning the case.

The State failed to call B. C. Currin or Johnnie Wilkins as witnesses; neither did it call the person from whom Finney purchased the newspaper to testify relative to his conversation with the juror. In our opinion, the conduct of the juror, as related by him on the hearing, comes within the inhibition of Article 668, C. C. P., which provides as follows:

“After the jury has been sworn and impaneled to try any felony case, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the consent of the attorney representing the State and the defendant, and in charge of an officer.”

This seems to be a mandatory provision and should be strictly observed in the trial of criminal cases.

Article 671, C. C. P., reads as follows:

“No person shall be permitted to be with a jury while they are deliberating upon a case, nor be permitted to converse with a juror after he has been impaneled, except in the presence and by the permission of the court, or except in a case of misdemeanor where the jury have been permitted by the court to separate. No person shall be permitted to converse with the juror about the case on trial.”

It seems to be fairly well settled in this State that where a juror is shown to have conversed with an outsider that, the person with whom he talked must be presented to rebut the presumption of injury, the decisions being to the effect that the testimony of the juror alone is not sufficient to overcome that presumption. In the instant case, the State failed to produce the party from whom the juror purchased the newspaper. Neither did it produce Currin or Wilkins to show that they, or either of them, mentioned anything to him relative to the case on trial. Consequently the State failed to discharge the burden which rested upon it. See 31 Tex. Jur. p. 220, sec. 29; Toussaint v. State, 92 Tex. Cr. R. 374, 244 S. W. 514; McCollum v. State, 129 Tex. Cr. R. 480, and cases there cited. In the case of Chappel v. State, 50 S. W. (2d) 327, the subject is fully discussed and many authorities are cited in support of the rule stated. To again enter upon an extended discussion thereof would serve no useful purpose, as a mere reference to the authorities cited is deemed sufficient. It is our candid opinion that under the facts proven upon the hearing of the motion, that the trial court erred in declining to grant a new trial.

The judgment of the trial court is reversed and the cause remanded.

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.