Harrell v. State

There seems to have been no conflict of evidence or contradiction of the fact that members of the jury, during their deliberation, made comments upon the defendant's failure to testify and explain his reason for transporting the whisky found in his possession. To illustrate, the testimony of juror Smith is as follows:

"I did hear mention of the failure of the defendant to testify while the jury was considering its verdict. I do not remember which juror mentioned it. * * * Some one made the statement that the defendant didn't take the stand and was saying that he had the privilege not to do so. * * * The reference to the failure of the defendant to testify was made between the first and fourth ballots and was made before I voted for guilty. I tried to decide the case according to the law and evidence, but the argument that the defendant did not explain or testify had some weight with me to vote for guilty. * * * There was some talk about him not doing so — about him not using it for medicine and not taking the stand."

The testimony of juror Sherrod is as follows:

"During the time that we were considering the case there was a good bit of discussion. * * * Some argument was made by the jurors that if the defendant had not had the whisky, he would have testified. I do not know which one of the jurors made that argument. * * * There was no discussion — just heard the statement. That was all I heard about it — something was said about it."

Juror Hartrick gave testimony as follows:

"I did hear reference made to the defendant's failure to testify. It was mentioned. I don't know just how it was mentioned. I reached over and took the charge and read it. I do not know who said it — all were talking at once. I looked at the charge and read the charge and after that his failure to testify was not mentioned any more. * * * I only heard them talk about his failure to testify one time. I do not know how many were in that discussion. There were three or four talking at once. * * * After the discussion I picked the court's charge up and read it over down to the place that said the defendant didn't have to testify before I called the jury's attention to that part of the charge. I did not read the whole charge out loud."

The testimony of juror Carver is as follows:

"The jury was not always together. At times there would be two or three in one room and part of the jury in another room. All of the jurors could not hear all that was said during such times. * * * Mr. Hartrick read the court's charge. I don't remember hearing him read that portion of the charge that discusses the failure of the defendant to testify."

That of juror Weaver is as follows:

"Some one started to say something about defendant not explaining why he had the whisky, and what he was going to do with it. I do not know all of the jurors, and we were sometimes separated. I did not hear all that was said."

In view of the statute, article 710, C. C. P., 1925, declaring that the failure of any defendant to testify shall not be taken as a circumstance against him nor shall the same be alluded to or commented upon by counsel in the cause, and article 753, C. C. P., subd. 8, relating to misconduct of the jury, and the interpretation and the application of the statutes mentioned by this court, we are constrained to regard the evidence in the present instance as going much beyond the bare allusion to the failure of the accused to testify in his own behalf. Manifestly, the decisions are too numerous to justify any general discussion. The following, however, are regarded in point: Clark v. State, 76 Tex.Crim. Rep.; Stone v. State, 79 Tex.Crim. Rep.; Boozer v. State,82 Tex. Crim. 72; Roberts v. State, 85 Tex.Crim. Rep.; Walling v. State, 59 Tex.Crim. Rep.; Hammonds v. State, 106 Tex.Crim. Rep.; Laake v. State, 108 Tex. Crim. 206.

For the reasons stated, the motion for rehearing should be granted, the order of affirmance set aside, the judgment reversed and the cause remanded.

Reversed and remanded.