— The offense is theft-of cattle; punishment fixed at confinement in the penitentiary for a period of two years.
After the jury had been impaneled and sworn and had heard part of the evidence, one of the jurors was permitted to go to his home twelve miles from the courthouse and spend the night with his family. He went with the consent of the State’s counsel as well as that of the appellant’s counsel, which consent was given in the presence of the appellant. The juror was not accompanied by othеr members of the jury nor by an officer.
There was an issuе in the case touching the ability of one of the witnesses to recognize the appellant at a certain distance. During the separation, the jurоr noticed that he could recognize one of his friends at a similar distance and under similar conditions. Hе communeated this fact to the other members оf the jury upon his return. The State’s Attorney concedes that the transaction requires a reversal of the judgment. This view is concurred in by the court. The statute is impеrative in demanding that if a juror is permitted, for any reаson, to separate from his fellow-jurors, it shall not only be with the consent of the attorney represеnting the State and of the defendant and by the permissiоn of the court, but that he shall be in. charge of an оfficer. Code of Crim. Proc., Art. 745. The mandatory nature of this statute has often been declared. See Sterling v. State, 15 Texas Crim. App. 249, and other cases listed in Dibbles’ case,
It is specifically declared in Art. 837, C. C. P. subdivision 7, thаt a new trial shall be granted where the jury “after having retired to deliberate upon the case” has received other testimony. The bill of exceptiоns reveals a transgression of this law. See Yernon’s Tex. Crim. Stat., p. 789, and cases there listed.
The indictment named W. C. Hawkins as the owner of the property and charged that it was taken from his possession. The recоrd indicates that the stolen cattle were taken from the possession of W. A. Hawkins, a relative of W. C. Hawkins, and that W. A. Hawkins had the care, control and manаgement of them at the time they were
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taken. It is essential that the person having actual care, сontrol and management of the property be named in the indictment. See Art. 457. C. C. P.; also Vernon’s Tex. Crim. Stat., Vol. 2, p. 456; Rabe v. State,
For the reasons stated, the judgment is reversed and the cause remanded.
Reversed and remanded.