Early v. State , 51 Tex. Crim. 382 ( 1907 )

Appellant has predicated a motion for rehearing based on several grounds heretofore treated in the original opinion by the court, and on one or two grounds not discussed. Among other things, he insists that the court was in error in holding that the misconduct of certain jurors in talking over the phone to members of their families and others was without prejudice to him, and in this connection he suggests that the court did not discuss articles 728 and 729 Code Criminal Procedure, and he further suggests that said articles have direct reference to such misconduct as said jurors were guilty of. It is true, as stated, that said articles were not discussed in relation to said matter, and it may be further observed that they have a more direct bearing on the question than articles mentioned in the opinion. Article 728 uses this language: "No person shall be permitted to be with the jury while they are deliberating upon a case, nor shall any person 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, and in no case shall any person be permitted to converse with a juror about the case on trial." Article 729 provides, "Any juror or other person violating the preceding article shall be punished for contempt of court by fine not exceeding $100." As stated in the opinion, at the time of the passage of these articles there was no such invention in existence as a telephone, and the method of talking by phone was then unknown; but if said articles are broad enough to include a conversation over a phone, of course, said articles will be applied, and such conversations embraced within the spirit of the prohibition. As heretofore intimated, we believe that the purpose of said articles was to inhibit any character of conversation between the jurors and other persons, except as therein provided. Not only would a conversation, as we ordinarily understand it, between persons directly talking to each other, but indirectly talking to the jurors through others or talking to the jurors by means of signs or gestures, as well as the modern method of talking over phones, though the persons be not actually present, would be prohibited by both the letter and the spirit of this statute. Indeed, we apprehend that if jurors are permitted to talk with persons indiscriminately over phones out of the presence of the court, and without the permission of the court, it would be fraught with more danger to the integrity of the jury system than if such conversations were had between persons directly present with the jury and in view of the officer, and the establishment of such a precedent would be calculated to emperil the integrity of the jury and the guarantee of a fair trial by an impartial jury. It is insisted that where it is shown that a conversation occurred between members of the jury and others over the phone not in the presence and not by permission of the court, as here, that either one of two rules should apply; first, that it will be absolutely presumed that injury occurred to appellant, or if this presumption is not indulged, that the burden is on the State to show that such injury could not have occurred. With regard to the misconduct of the jury, which related to their separation, which is analogous to the proposition herein involved, since McCampbell v. State,37 Tex. Crim. 607, the doctrine therein announced has been followed without a break, to wit; that where a separation of the jury trying a felony case has been shown and opportunity presented for the juror or jurors to be tampered with, that injury to appellant will be presumed. Whether this rule be applied and adopted here or the milder one to the effect that where jurors are shown to have conversed with others, that the burden is then on the State to show what the conversations were about, and that no possible injury accrued to appellant, the result, so far as this case is concerned, must be the same. On the examination of this issue before the court, some of the jurors were examined but not all; they stated that they talked with their wives and in one instance one of the jurors with another lady neighbor about home matters; all of the jurors were not examined. The deputy sheriff was examined; he heard some things that the jurors said, but he could not hear what was said at the other end of the line. None of the parties conversed with by jurors were summoned or examined. Heretofore, we have held with reference to the separation of jurors that these would be liable if tampered with to suppress the fact and that, therefore, little reliance should be placed on their testimony, and the same rule would apply with reference to conversations. So that the necessity for the examination of others than the jurors with whom such conversations may have occurred seems to be necessary. This was not done. We accordingly hold that the burden thus shifted to the State was not discharged by it. We believe in the face of the statutes above cited that it would be a bad precedent to hold that jurors out of the presence of the court, and not by permission of the court, should be permitted to converse with other persons over phones, and certainly where such conduct does occur it should be held obligatory on the State to show beyond any question that the jurors were not tampered with. Any other rule would destroy a barrier set up by the Legislature intended to protect the purity and integrity of the jury box.

We held in the original opinion that the charge of the court on self-defense, though not called for, was not calculated to injure appellant. In the motion for rehearing appellant invokes the case of Monroe v. State, 81 S.W. Rep., 726, and he calls our attention to the facts of that case as being in line with the facts of this case. An examination of the case cited bears out appellant's insistence. There we held: "In the absence of testimony a charge of this character was calculated to involve appellant unduly and prejudice his rights with the jury." A more careful examination of the record in this case leads us to believe that the facts of the case did not authorize the court to give a charge on self-defense, and we are not prepared to say that such a charge may not have worked injury to appellant in the minds of the jury. For other authorities on this subject, see Mooney v. State, 65 S.W. Rep., 926; Randell v. State, 64 S.W. Rep., 255; Bell v. State, 56 S.W. Rep., 913; Ballew v. State, 34 S.W. Rep., 616, and Spillman v. State, 38 Texas Crim, Rep., 607.

In the original opinion we failed to treat one of appellant's assignments predicated on his twenty-sixth bill of exceptions, relating to the excluded testimony of Cleve Sanders. Appellant sought to prove by this witness that after the difficutly in the barber-shop between Calloway and Early that they had made friends. It appears that the State in order to show animus on the part of appellant towards deceased proved a difficulty between Early and deceased about two or three weeks before the homicide in the barber-shop at Mt. Calm, and this was followed up by proof on the part of the State by the witness Stirman; that on the day preceding the homicide appellant had used language manifesting ill-will towards deceased on account of the previous difficulty at the barber-shop, and in addition to this testimony indicating ill-will, the State also proved by Guion that appellant had said Calloway was a rascal, and he could not arrest him. In the face of this testimony on the part of the State, appellant himself testified that he and deceased had made friends with regard to the difficulty at the barber-shop subsequent thereto. In addition to this he offered to show by the witness Sanders that he knew the defendant and deceased were friendly after the difficulty at the barber-shop, because he had been informed by the deceased and the defendant that they had made up, and had agreed to forget and overlook said trouble, and that deceased and defendant informed said witness after the difficulty their feelings were friendly towards each other. We believe this testimony was admissible. The State's case against appellant was purely of a circumstantial character. The State proved appellant was present when Harmie Horn slew deceased, but was not able to prove any direct act on the part of appellant showing any actual participation in the difficulty. The case against appellant was mainly supported by proof of his animus growing out of a former difficulty between himself and deceased at the barber-shop, and any proof, it occurs to us, was admissible which would show that the former difficulty had been settled and the parties were friendly, and here appellant proposed to show it both by expressions from appellant and from the deceased to the witness Sanders. This could hardly be said to be purely self-serving declarations; certainly not coming from deceased, and we hold this testimony was authorized. See Gaines v. State, 38 Tex.Crim. Rep.; Turner v. State, 46 S.W. Rep., 830, and State v. Leabo, 84 Mo., 168.

On another trial of the case we would suggest that the court do not instruct the jury with reference to the presumption arising from the use of a deadly weapon in committing the homicide. We would further suggest that the court eliminate so much of the testimony introduced on the previous trial showing that appellant, shortly before the homicide, drove a couple of negro women from the livery stable to some place in the suburbs of Mt. Calm, and was gone about half an hour. A discussion by appellant in his motion for rehearing, as to this matter, and his illustrations, convinces us that said testimony was appropriated to an improper use.

The motion for rehearing is accordingly granted, and the judgment reversed and the cause remanded.

Brooks, Judge, dissents.

Reversed and remanded.