Goode v. State

In the ninth paragraph of appellant's amended motion for new trial appellant avers that:

"T. F. Farmer and Geo. Harris were guilty of misconduct as jurors during the trial of said cause, in that after they were duly impaneled as jurors and before they rendered a verdict herein, on the North side of the Court Square and at a time when the other ten jurors and the officer in whose custody they were, were not present nor within hearing of such conversation, talked to a person whose name to defendant is unknown, and about which conversation defendant has not been apprised, nor is he in a position to ascertain the subject discussed between said parties."

Upon the hearing of the motion in support of the foregoing averment appellant offered the testimony of E. Kyle, who was a member of the jury. His testimony is as follows:

"While we were out in front of the cafe there he (referring to Fred Everett, another member of the jury) called my attention to someone talking to some of the jurors. He said, 'Just look there, someone is talking to one of the jurors.' He just called my attention to it, I do not know who he was, he was an old-like gentleman talking to Mr. Farmer. That was next to the restaurant there, and we were out in the street. He talked to Mr. Farmer and then went across on the other side and talked to Mr. Harris. I could not hear what was said and would not have paid any attention to it unless Mr. Everett had called my attention to it. * * * I said that over on the north side at the American Cafe there was someone speaking to one or two of the jurors, but I don't know who it was. * * * When the talk was had over there in front of the restaurant, whatever was said by whoever it was that said it, I did not understand what was said. I was out in the street at the time and that happened back on the sidewalk."

The state introduced Mr. Farmer, who testified that he had not discussed the case with any person over about the American Cafe during the time the case was on trial, but said that one morning after they had come down the stairway Judge Fulton came along and said, "Good morning," and made some remark about the weather; that he, the juror, moved on and made no answer. Farmer said he did not think any of the jurors were out in the street at the time; that he knew Mr. Kyle and Mr. Everett; but did not know where they were when this incident occurred. He said he thought Mr. Harris, another one of the jurors, was just behind him as they were coming down the stairway. The juror further said that Mr. Fulton, to whom he referred, was an elderly man. The state also called Mr. Harris. He testified that in front of the American Cafe Mr. Fulton started to ask him a question while he was standing on the sidewalk, but that Mr. Smith stopped him. He further testified: "I do not know what he started to ask me. The reason I know that he started to ask me a question is because he walked up there and looked like he was going to. I do not remember whether he said 'Good morning,' and asked me something about the weather or not. I don't think Mr. Fulton spoke to Mr. Farmer. * * * When Mr. Smith told him we were on the jury he begged our pardon and we started on to the court house."

The Mr. Smith referred to in the testimony of the juror was the deputy sheriff in charge of the jury. If Mr. Kyle was mistaken in swearing that the outsider talked to Mr. Harris, Mr. Smith could have been called by the state to support Mr. Harris in his version of the matter. He was not called, and his absence was in no way accounted for. It seems to have been established that Mr. Fulton did have some communication with the juror Farmer. Mr. Fulton was not called to give his version of the matter, and no explanation is made by the state why this was not done. It does appear from the evidence heard upon the motion that an effort was made to get the juror Everett by calling him over the telephone, and that Everett had promised to come as soon as he could get there. He seems not to have arrived in time to get his evidence in the record.

Article 671, C. C. P., reads as follows: "No person shall be permitted to be with a jury while they are deliberating upon a case, nor be permitted to converse with a juror after he has been impaneled, except in the presence and by thepermission of the court, or except in a case of misdemeanor where the jury have been by the court permitted to separate. No person shall be permitted to converse with the jury about the case on trial."

Subdivision 7 of article 753, C. C. P., makes it a ground for new trial in a felony case "where a juror has conversed with any person in regard to the case."

When it is shown that the mandates of the statutes have been violated by some outsider conversing with a member of the jury, especially, separate and apart from the other jurors, it has been held that the presumption of injury will arise, and that the burden is upon the state to show that no injury occurred. It has been further held that this burden can not ordinarily be discharged by the testimony alone of the juror conversed with, but that, if the outsider is available to the state, he should be called to aid in discharging the burden. See Early v. State, 51 Tex.Crim. Rep.; Newman v. State, 91 Tex. Crim. 559,240 S.W. 312; Toussaint v. State, 92 Tex. Crim. 374,244 S.W. 514. Many other cases will be found referred to and reviewed in the authorities cited.

We quote from Early's case, as follows: "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 tempered 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 conversation 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 quote from the opinion in the Toussaint case: "The persons with whom the various jurors talked over the telephone during their retirement have not been produced; nor their absence accounted for. The women with whom the jurors talked in person were not used as witnesses to give their version of the conversation. One of these jurors was not called to show the nature of the conversation in which he took part. Nothing appears in the record to indicate that these women or this juror were not available, nor to indicate that the persons with whom the jurors claimed to have talked over the telephone could not be produced. It having been conclusively shown that the statutes were violated, the burden was upon the state to meet the presumption of injury by the introduction of such testimony as was available to it. In the absence of so doing, the rule illustrated by the unbroken line of precedents must operate against the verdict. Early v. State,51 Tex. Crim. 391, and other cases to which we have adverted above. The case of Latham v. State, 75 Tex.Crim. Rep., we do not construe as overturning this rule. To so construe it would bring it in conflict with the undoubted weight of authority."

It is appellant's contention that under the facts developed upon the hearing of the motion for new trial our holding in the original opinion in the present case is contrary to that in the Early, Newman, Toussaint, and other cases, supra, and does, in effect, overrule them, if the opinion is permitted to stand. It is further the contention that the three cases cited in the original opinion upon the point in question, when analyzed, are not out of harmony with the general rule heretofore announced by this court as controlling.

In Hamilton v. State, 83 Tex.Crim. Rep.,201 S.W. 1009, it appeared that an outsider, an old gentleman, had inadvertently gotten among the jurors in the jury box, and had a whispered conversation, and, upon learning he was out of place, excused himself and left. It does not appear from the opinion in that case what evidence was heard by the court upon the point, but it is stated: "The conclusion of the trial judge on hearing the evidence that there was no injurious conversation by members of the jury with an outsider, is sustained by the evidence introduced thereon."

It might be inferred from what was said in that case that the outsider went into the jury box when all the jurors were present, and that it occurred in open court; or the outsider may have testified upon the hearing of the matter upon the motion for new trial as to what he had said.

In Patterson v. State, 106 Tex.Crim. Rep., the point was that a juror had conversed with a party by the name of Goolsby. Upon the motion for new trial Goolsby testified as to the subject of this conversation, and the burden of proof to show that there was no injury was thus discharged.

In Newton v. State, 114 Tex.Crim. Rep., it is clear that the facts presented an unusual situation, in which a waiter served the jury with sandwiches, and whatever occurred between the waiter and the jurors happened when they were all present. It was shown by the jurors that, when one of the jurors asked the waiter what the bill was, he presented it to the juror and the waiter said nothing. The Newton case was regarded as presenting an exception to the general rule, in not relating to an alleged conversation between an outsider and some individual juror, separate and apart from the others. It is made clear that it was not the intention by the opinion in the Newton case, to depart from the holding announced in Toussaint, supra. We quote from Newton's case as follows: "Any intention to depart from the holding of this court in Toussaint v. State, supra, and the authorities there collated, is disclaimed. The article of the statute referred to in those cases is mandatory, and, where the evidence shows a violation of its express command, the presumption of injury obtains. In such case, unless the presumption of injury is overcome by evidence, it is incumbent upon the trial court to grant a new trial. And, ordinarily, where a juror converses with an outsider, it is the rule that the person with whom he talked must be presented to rebut the presumption of injury; the decisions being to the effect that the testimony of the juror alone is not sufficient. Toussaint v. State, supra."

The incident referred to by the juror Kyle may have been as innocent as indicated by the testimony of the juror Farmer; if so, it is unfortunate that the state failed to call the officer who was in charge of the jury, and Mr. Fulton, to give their versions of the conversation. In failing to do so, however, or to account for their absence, the state failed to discharge the burden of proof cast upon it by the incident.

After a careful analysis of the testimony heard upon the motion for new trial, and a further review and analysis of the authorities, we conclude we were in error in our original opinion, as it relates to the subject discussed.

The motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.

Reversed and remanded.