Gardner v. State

This case was affirmed at a former sitting of this court, and now comes before us on motion for rehearing.

Appellant contends this court erred in overruling and in not sustaining his assignment of error wherein the court's action in attempting to answer the written request of the jury for further instructions is complained of. To support his contention appellant cites us to the following authorities: Willson's Code of Criminal Procedure, art. 734; Lee v. State, 44 Tex.Crim. Rep., 72 S.W. Rep., 195; Bonner v. State, 29 Tex.Crim. Rep., 15 S.W. Rep., 821; Taylor v. State, 42 Tex. 504; Newman v. State,43 Tex. 525; Whorton v. State, 45 Tex. 2 [45 Tex. 2]; Chamberlain v. State, 2 Texas Crim. App., 451; Garza v. State, 3 Texas Crim. App., 287; Hannahan v. State, 7 Texas Crim. App., 610; Post v. State, 10 Texas Crim. App., 579; Shipp v. State, 11 Texas Crim. App., 46; Granger v. State, 11 Texas Crim. App., 454; McDonald v. State, 15 Texas Crim. App., 493; Mapes v. State, 13 Texas Crim. App., 85. The case of Lee v. State, supra, as we understand it, has no application to the question here under consideration. The rest of the authorities cited were under the old code. The authorities cited by appellant properly announced the law as it formerly existed. After the retirement of the jury the trial judge was inhibited in any case from making any further charge, unless on application of the jury, or a party or his counsel. This rule, however, was changed on the adoption of then Revised Statutes of 1879, the inhibition having been omitted in the revision. See Benavides v. State,31 Tex. Crim. 173. The judge can call the jury back at their own request or he may do so on his own volition. Caston v. State, 31 Tex.Crim. Rep..

The charge of the court is in all respects correct, except perhaps it does, as appellant insists, go beyond the questions asked the court by the jury. In other words, when the jury returned into court they propounded to the court certain questions. The court answered those questions and then goes beyond those questions in explaining the law to the jury. This under the law last cited was correct. There is no other question discussed in appellant's motion for rehearing.

The motion for rehearing is overruled.

Overruled.