Rees v. State

BAKER, J.

Appellant was convicted in the district court of Bee county for transporting intoxicating iiquor, and his punishment assessed at one year in the penitentiary. Complaint is made to the court’s charge on transportation. We see no error on this phase of the case and no harm shown to defendant under article 743, C. C. P.

Appellant complains of the action of the court in permitting Sheriff Malone to testify, after stating that he overtook defendant near the fair ground, and did not intend to let him leave there if he could help it, and, after he had taken the bottle from him, he told him to “let’s go hack to the hangar,” and, when they started back to the south end of the hangar, the defendant said, “Chief, you are going to ruin me; just think about my folks. JVty goodness, what in the world will I do? Ain’t 'there some way we can stop this or quash it?” And he told him he was talking to the wrong fellow; that when they reached the south end of the hangar the sheriff asked, “What have we got?” and asked for his (defendant’s) keys, and that the defendant slapped his hand away, and he told him not to do that, to give him those keys; and he slapped his hand away again, and then he (sheriff) poked defendant right in the breast or stomach with his gun, and he dropped the keys, and, upon unlocking the hangar and another door, he found a quantity of bottles of whisky, which defendant begged him to let him break, and said he would break every bit of it before his eyes. This testimony was objected to because defendant was under ai’rest at the time said statements were made. The court admitted same, he states, upon the ground that It was res gestae. The record shows the state was relying upon a conviction by reason of taking a bottle of whisky off of defendant’s person prior thereto. The qualification to the bill states it was about seven minutes from the time the sheriff first saw him (defendant) until the last statement was made. We fail to see how the statements made by defendant at the time of the finding of the whisky in the hangar and the conduct of defendant and the sheriff, and statements of both relative to obtaining the keys and breaking the whisky, as set out in said bill, throw any light on the alleged transportation of the bottle taken off of his person, and, further, do not believe that this testimony comes under the head of res' gestae, and that same should not have been admitted. Under a charge of having whisky in his possession for sale, it might be permissible as a circumstance to show .the finding of this whisky as -hearing on the Intent of defendant, but his statements as above set 'out, as well as the testimony of the witness Wright to the same effect, was not admissible. Stanchel v. State, 89 Tex. Cr. R. 358, 231 S. W. 120, and Walton v. State, 41 Tex. Cr. R. 454, 55 S. W. 566.

But as the cáse will be reversed on another point, it is unnecessary to discuss this matter further.

Appellant also complains of the action of' the jury in discussing, while considering their verdict, the failure of the defendant to testify upon the trial. Three of the jurors made affidavits that, after they retired and before reaching a verdict, it was argued by members of the jury to the effect that, if the defendant was not guilty, why didn’t he go on the stand and swear that he did not do it; that, if they were on trial and not guilty, they would take the stand and deny the charge. One of the affiants stated at least seven or more of the jury argued that. -The state placed all the jurors upon the witness stand, and the most of them testified that it was discussed or mentioned after the first ballot was taken, and they stood' ten to two for conviction, and they remained that way until the following day, and the others said they did not hear it, but would not say it did not occur. In fact, there was no denial of it. The juror Marlin testified that he made the statement that he personally felt like if he was on trial and pleaded not guilty, that he would swear to it until he died; that he would contend for it that way. All of the jurors, except one on the stand, testified that the argument made and the failure of the defendant to testify did not influence their verdict. One of the jurors testified the argument influenced him. It was conclusively shown these statements were made before a verdict was reached, and after the jury stood ten to two for conviction. We are of the opinion that the conduct of the jury comes clearly within the prohibited rule. Branch’s P. O. § 569, pp. 292, 293. Hennington v. State, 100 Tex. Cr. R. 78, 271 S. W. 624. We think the above authorities clearly hold that the conduct of the jury in this case was reversible error and the court should have granted a new trial. There are other errors complained of in the record, but we do not deem it necessary to pass upon same at this time.

For the reasons above stated, the judgment of the trial court is reversed and remanded.

PER CURIAM.

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.