Appellant was convicted of an assault with intent to murder, and his punishment assessed at seven years confinement in the penitentiary.
In the view we take of this record, it is only necessary to consider two questions. By bill of exceptions number 1 it is made to appear: "That the county attorney proposed in the presence of the jury to take the prisoner, attorneys, judge, officers of the court, and the jury on the ground where the alleged assault with intent to murder was committed, to examine back of the store and adjoining grounds. To this proposition counsel for defendant replied, `There is no use of making a proposition of that kind, because such a proposition would be perfectly illegal and void.' Whereupon, the court asked counsel for defendant, `Will you agree to it?' Counsel for defendant refused to answer. Thereupon the court the second time asked defendant's counsel if he would agree to take the jury and defendant on the grounds. Counsel for defendant then said he would agree to the proposition of the county attorney. The court also asked defendant if he would agree, and he assented. Whereupon the court adjourned to the grounds, and the jury, together with the officers, carefully removed the rubbish and examined the grounds and the soil, and remained upon the grounds about ten minutes, and then adjourned to the courthouse, defendant having accompanied the court and jury, and being present at the scene with the court and jury and counsel. Wherefore defendant now presents this bill of exceptions, and states to the court that it was error for the county attorney to make such a proposition in the presence of the jury, because, to refuse the same would be prejudicial to defendant. It was improper and erroneous for the court to make said proposition to defendant's counsel and to defendant, and thereby drive defendant to accept or refuse. It was error for the court, under Texas law, to allow the jury to go out and obtain evidence which was not testified to by any witness in the courthouse, where all proceedings are required to be held, and to allow the jury to obtain evidence not testified to by any witness, and about which defendant could not cross-examine
the witnesses, and which could not be put in the records of the cause." The court appends the following explanation to the bill: "If defendant's counsel ever made any statement about it being illegal to take the jury and prisoner to the scene above mentioned until this bill of exceptions was presented on September 26, 1900 (five days after the trial), the court did not hear such statement. It is a fact that both defendant's counsel and defendant in person agreed to the proceedings had as cited in the bill, and that defendant in person and his attorneys went and were present, and that the first objection to the proceeding was made known to the court five days after the trial, to wit, on September 25, 1900." As far back in our jurisprudence as Smith v. State, 42 Tex. 444, appellant's contention has been sustained. ROBERTS, Chief Justice, delivering the opinion of the court in that case, said: "In order, however, to turn the balance in this conflict of evidence as to the re-marking of the sow against Smith, Houston brought the sow to town, and after the matter had been thrown in doubt by the contradictory statements of the witnesses, the district attorney proposed to have the jury leave the box, go to the place where the sow was put up, and inspect her ears, so as to determine this doubtful question for themselves by a personal view. The defendant consented to this, which his counsel might have done, whether he thought it a proper proceeding as part of his trial or not, so as to show that he was not afraid of any mode of trial, and because an objection might betray to the jury a want of confidence in their judgment and skill in ascertaining the fact for themselves, whether or not the ears of the sow had been re-marked, by the appearance then exhibited on a close personal inspection and view of them." As indicated by appellant in his bill, he was constrained by the peculiar exigencies of the occasion to agree to the proffer, on the part of the county attorney, to view the place of the alleged crime, rather than leave the impression upon the jury he was afraid of the facts that might be disclosed. It was wrong to place appellant in this character of attitude; and further, it was wrong to permit the jury to inspect the premises. Judge ROBERTS, in the case above cited, further says: "There is thus no authority found in this State for such a mode of enlightening the minds of the jury as to the material facts of a case which they have to try. The fact of such a proposition being made indicates an opinion of a necessity for additional aid to the evidence already adduced, to relieve the case from the doubt and uncertainty in which it was involved by the conflicting evidence." Article 1451, Revised Civil Statutes, provides: "All vouchers, views, essoigns, and also all trials by wager of battle and wager of law, shall stand repealed." It is true that article 22, Code of Criminal Procedure, provides: "The defendant in a criminal prosecution for any offense may waive any right secured to him by law except the right of trial by jury in a felony case." These articles must be considered together, and when so construed it leaves no doubt that the learned trial court erred in permitting the jury to review the premises. Where
two articles apparently conflict, that construction must be given to the articles that will uphold the validity of both; and the fact that appellant consented to a view of the premises would render legal an act the statute positively prohibits, can not receive our sanction. This construction of article 1451 is fortified by section 7 of article 817, Code of Criminal Procedure, providing that it shall be reversible error for the jury to receive other testimony than that adduced during the progress of the trial. The object of this article is in direct line with the object of article 1451, Revised Civil Statutes, in that it appears to guarantee to appellant a trial upon the evidence, which presupposes sworn testimony adduced under the rules of evidence and the sanction of the court, and not garbled ex parte statements, hearings, impressions or judgments, either of witnesses or of jurors. Appellant's contention is correct, and the court erred in permitting such inspection by the jury. By bill number 4, it is shown, "while the evidence for the State was being taken, and Constable Jacoby was on the witness-stand, the witness testified he arrested defendant about 9 o'clock in the morning, going from defendant's home over towards Bradley
Barrett's drug store, where defendant worked. The State inquired of witness whether or not said Wiggins had any arms on him, and what Wiggins did when he arrested him. Defendant objected to witness answering the question or stating whether arms were upon the person of defendant the next morning after the crime, as it was a separate and distinct offense, in no way connected with the offense charged against defendant, as the proof all went to show that the injured party was struck with an ax, and there was no proof that a pistol was used, and that said testimony was irrelevant and very hurtful and injurious to the defendant's cause. Defendant's objections were overruled and the witness stated that, when witness arrested defendant, he examined him and found no arms on him, but they had not walked far before a large pistol dropped down defendant's leg and the muzzle appeared below the breeches. Another party, who was with Jacoby, jumped out of the buggy with a pistol and grabbed defendant's pistol below the breeches or pants, and defendant caught the same by the handle, the pistol at the time being in his pants' leg, except a part of the muzzle. This testimony was not admissible, since it proved a separate and distinct crime against appellant, in no way connected with, dependent upon, or illustrative of the crime for which appellant was then on trial.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.