Goode v. State , 123 Tex. Crim. 293 ( 1932 )

When jurors communicate with a third person without the consent of the court, the burden is upon the state to show that no injury occurred to the accused. See Parshall v. State,62 Tex. Crim. 177, 138 S.W. 759; Bryan v. State,63 Tex. Crim. 200. In the interpretation of article 753, subdivision 7, and article 671, C. C. P., the court, in the unanimous opinion written by Judge Henderson in the case of McCampbell v. State, 37 Tex.Crim. Rep., announced the rule that, where there was a violation of the statutory command, the burden was upon the state to show an absence of injury. The rule was restated and emphasized in the case of Early v. State, 51 Tex. Crim. 382 (opinion on motion for rehearing, page 390). The rule has been sanctioned in many cases, among them McDougal v. State, 81 Tex.Crim. Rep.; Wood v. State, 84 Tex. Crim. 187; Gonzales v. State, 88 Tex.Crim. Rep.; Toussaint v. State, 92 Tex.Crim. Rep.; Rushnefsky v. State, 92 Tex.Crim. Rep.; Newman v. State,91 Tex. Crim. 559; Faulk v. State, 106 Tex.Crim. Rep.. See, also, 22 Amer. Law Rep., 272, note.

In the present instance, it is made to appear from the evidence that Smith, the deputy sheriff, juror Everett, and Judge Fulton were cognizant of the facts bearing upon the issue involved, namely, the remarks in the presence of a member of the jury. The state failed to call either of these persons, but relied entirely upon the declaration of jurors Farmer and Harris to overcome the presumption of injury. The conclusion that the burden resting upon the state was thus discharged would, in the opinion of the writer, practically abrogate the rule heretofore regarded and often declared essential. In the decisions of this court to which reference has been made above, the statute in question (article 753, subdivision 7, C. C. P.), has been interpreted, and, since its interpretation, has been re-enacted without change, thus giving to the interpretation the force of legislative adoption. See Lewis' Sutherland, Statutory Construction (2nd Ed.), vol. 2, sec. 399; Cooper v. Yoakum, 91 Tex. 391.

The affirmance of this judgment upon the evidence before the court would, in the opinion of the writer, unsettle a principle of law not only of long standing but of undoubted soundness, that is, that, where unauthorized communications with jurors in a case are shown to have taken place, it is incumbent upon the state to make clear to the court that the communications were not of a harmful nature. The burden thus resting upon the state demands diligence which is not met when, as in the present case, the offending persons, that is, the persons communicating with the juorors, are not called to give testimony and no sufficient reason is given for the failure to call them. The maintenance of this principle, bottomed on the duty of the courts to be diligent in the maintenance of the purity of the verdict of the jury, far outweighs the inconvenience incident to a retrial of the appellant in this appeal. For these reasons, I concur in the opinion of Judge Hawkins which is on file with the record.