Appellant was convicted'of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years; hence this appeal.
Appellant assigns as error the action of the court in overruling his motion to require the State to put all the eyewitnesses to the homicide on the stand, so that he might have the benefit of the cross-examination of said witnesses. This matter has beеn repeatedly settled by this court against the contention of the appellant. See Reyons v. State,
There was no error in allowing the State to recall the witness Maxey, nor in permitting the State to introducе the witness Lee. The matters presented in these bills of exception are greatly in the discretion of the trial court, and unless there appears to be a palpable abuse of such discretion, it will not сonstitute reversible error.
Bor was there any error in refusing to permit the defendant to go into the particulars of the deceased’s reputation as to being a dangerous man, *45 and allowing proof of pаrticular incidents where he had engaged in difficulties with deadly weapons.
The testimony of Maxey as to what the defendant said and did on his arrest was a part of the res gestae of the homicide, and admissible as such. But if it be conceded that this was error, it was cured by the action of the court in withdrawing it from the jury by the charge.
• We have examined the court’s charge carefully, and do not think it subject to the criticism of counsel for aрpellant. No objection is urged, either by bill or in the motion for new trial, to the charge given by the court on provoking the difficulty; and, if this was erroneous, it can not be complained of here for the first time. Nor do we аgree with appellant that the special charges should have been given. The court’s charge sufficiently covered the issues in the case.
Among other things, appellant predicated his motion for a nеw trial on the ground that the jury were guilty of misconduct while they had the case in charge, and also that they heard additional testimony. This matter appears to have been tried by the court on affidavits pro and con. Appellant furnished a number of affidavits in proof of the grounds alleged by him, and the State replied to those by counter affidavits. Appellant introduced the affidavits of several of the jurors tending to show that they werе permitted—in fact carried by the officer having charge of them to the locus in quo of the homicide, which was at a cotton wharf in the town of Huntsville, only a few blocks distant from the court house, and that the jury, while therе, were permitted to inspect said wharf and surroundings, which, it is urged, in connection with the testimony, was bound to have an important bearing with the jury, as these physical objects would be considered by them in weighing the testimony of the witnesses. In this connection, it is stated in the affidavits that the physical facts as found by the jury on the ground were used to discredit one Hiram Stutts, an important witness for the defendant. This witness testified to seeing a part of the difficulty, and it is stated in the affidavits that it was observed by some of the jury, at the time they were at the cotton wharf, that Stutts, from his position on the ground, could not have seen what he testified to having seen. This affidavit was made by one J. H. Hosea, whо stated that he heard one of the jurors remark—could not say which one—that, with the height of the wharf, Hiram Stutts could not have seen the two men on the northeast corner or part of the wharf, where Ward was said to have been killed, in the position Stutts claimed they were. It is also stated in the affidavits that two of the jurors, E. W. Turner and S. Holland, made the statement in the jury room, while the jury were deliberating on their verdict, that the defendant was an еx-convict, having stabbed a boy in the back, and that he was a bad character, and it was best to get him out of the country. These, we believe, are all the matters presented that can be considered in the nаture of testimony heard by the jury after having retired to deliberate upon the case.
*46
We do not understand the testimony of the State to controvert the fact that the jury were carried to the cotton wharf on the two occasions stated by appellant. Indeed, this is admitted; the excuse being that the jurors were carried to some stalls in that immediate vicinit)!-, instead of a privy, for private purposes. Some of the jurors dеny that they made any examination of the surroundings; but there is no express denial that the remark was made, as stated in the affidavit of appellant, that one of the jurors stated on the ground that Hiram Stutts could not have sеen what he testified to. The witness Hosea, however, who made the affidavit for the appellant, states, in an explanatory affidavit for the State, that he may, at some time since the trial, have said that he did nоt believe Hiram Stutts’ testimony, but that he had never said that it was because he went to the cotton wharf, and made an examination of the surroundings, etc. This is all the denial as to this matter. It is not a denial of his former statement that some other juror on the ground made the observation to which he swore on behalf of the appellant. Hor is it denied anywhere in the affidavits for the State that it was stated by the two jurors, while the jury were deliberating, thаt appellant was an ex-convict, he having been formerly sent to the penitentiary for stabbing a boy in the back. The affidavits in this regard on the part of the State simply show that this statement was made after the jury had agreed that appellant was guilty of murder, in the second degree; but they also show that they had not agreed at that time on the term of punishment, and, in fact, they expressly declare that there was a 'wide diversity betwеen the jurors as to the amount of punishment. Evidently, this declaration must have been made by those desiring the highest punishment to induce or coerce others more favorably inclined towards the defendant to agreе to their terms. We can not but regard the viewing of the locus in quo of the homicide by the jury, and its use in connection with Stutts’ testimony, and also the declaration, made before the jury, that appellant had previously been convicted and sent to the penitentiary for stabbing a boy in the back, as in the nature of evidence—unsworn testimony—received by the jury after they had retired to deliberate upon the case; and it was evidently injurious and hurtful to the appellant. Code of Criminal Procedure, article 817, subdivision 7, as has been stated in previous decisions of the court, would appear to be mandatory, and, where the jury has received other material evidence, whether from one of their number or from others, after they had retired to consider of their verdict, will be cause for reversal. See Hargrove v. State,
It also appears, by affidavits, that the jury were permitted to -scatter. On one occasion some of them remained in a saloon, while others went some little distance into the back yard to attend to the duties of nature. The State’s affidavits tend to show that all the jury were within the view of the officer, but this is not made clear. The officer in charge should not have permitted the jury to go into a saloon at all while they were deliberating. Ho emergency would seem to authorize this. It is also stated, in the affidavit of one Gibbs, that while the jury were breakfasting, or about the time they finished, one of the jurors, to wit, Will Robinson, went with him to a privy, about forty steps from the body of the jury, and that they remained at the privy together abоut twenty minutes; that they were by themselves, and were not accompanied by the balance of the jury, or the sheriff or his deputy; and they were not in sight of the jury, nor the officer in charge of the jury. Gibbs was a witness in the ease. What occurred between them is not made to appear. This affidavit is not gainsaid by the State. This, it seems to us, was a separation of the jury, and was such misconduct as should have been reprehended by the trial cоurt. The matter should have been investigated, and, if the officer in charge of the jury was found negligent in his duties, he should have been punished.
The action of the jurors Turner and Holland, in stating before the jury that appellant had bеen previously convicted for stabbing a boy in the back, was not only placing before the jury new evidence, but was very suggestive that these jurors were occupying the role of prosecutors in the jury box. But we will not disсuss this matter further. The observations we made in the case of Tate v. State, 38 Texas Criminal Reports, 261, are applicable to this case, and we quote from said case as follows: “The record discloses аn absolute fairness of trial, and a proper administration of the law up' to the submission of this case to the jury, and the reversal is based solely upon their misconduct. It occurs to us that when this matter was presented tо the judge below, it was his bounden duty, after the proof was submitted, to have granted a new trial, and not have compelled defendant to seek redress by an appeal to this court. In granting that new trial, he should have dеfinitely ascertained who of the jurors were guilty of thus tampering with justice, and have visited upon such the summary punishment authorized by law as for a contempt of his court. One such punishment, properly visited, would do much to arrеst this vicious practice, and to teach jurors a lesson that they should be governed entirely and exclusively by the oath assumed by them when they enter upon the trial of the case; that is, to try the case solely upоn the law and the evidence submitted to them. This court has been compelled to reverse not a few eases on account of the misconduct of juries in going • outside the record, and then after-wards making affidаvits publishing their disregard of the obligations *48 assumed by them when they were sworn as jurors. We would suggest that the district judges hereafter call the.attention of the jury to the oath they have taken, and admonish them against going outside of the record in the trial of any cause, and then, certainly, on a disregard of such admonition, there would be full authority to visit such punishment as would put an end to the practice.”
The judgment is reversed, and the cause remanded.
Reversed and remanded.