67 S.W. 104 | Tex. Crim. App. | 1902
Appellant was convicted of murder in the second degree, and his punishment assessed at twenty-one years confinement in the penitentiary.
In the view we take of this case, it is only necessary to pass upon a few of appellant's assignments of error. Appellant insists that the court erred, in the sixteenth paragraph of his charge, in charging the jury as follows: "The defendant is presumed by the law to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and if you have a reasonable doubt as to his guilt you will acquit him." His objections are that the same deprived him of the right to have the jury know that he was in fact, as well as in law, presumed to be innocent until his guilt was established by legal evidence to the satisfaction of the jury beyond a reasonable doubt. There is no merit in this contention. The law authorizing and requiring the court to charge this is a statute of this State, and is as binding upon the court as any other law passed by the Legislature.
Appellant complains of the seventeenth paragraph of the charge, which reads as follows: "You are the exclusive judges of the weight of the evidence and of the credibility of the witnesses." It is complained that the court erred in omitting this phrase from the charge, to wit, "and of the facts proved." We would suggest that it would be better to follow the verbiage of the statute.
Appellant contends that he has not had a fair and impartial trial, because the jury trying him during their deliberations discussed the verdict of the former jury that convicted him, and were thereby guilty of misconduct. This is the second trial of defendant, the former trial being reversed on appeal. Hughes v. State (Texas Crim. App.), 60 S.W. Rep., 563. When the matter complained of came on for hearing, N.P. Johnson, foreman of the jury, testified: After the jury had determined that appellant was guilty of murder in the second degree, they began to vote on and discuss the punishment to be assessed. Seven of the jurors voted to give him twenty-five years; three fifteen years; and two, thirty years. It was suggested that, as a majority favored twenty-five years, the penalty should be assessed at that. At this stage a juror (witness thinks it was Juror Witt, who favored a higher penalty) stated that defendant had been convicted before and given twenty-five years, and if this jury gave him the same punishment the people would say they were following the other jury. Johnson thereupon stated that, as he remembered it, the other jury had only given him twenty years. *514
This brought on a discussion of the penalty inflicted by the other jury, and most of the jury insisted that the other jury had given appellant twenty-five years. They seemed to agree that they should not give him the same penalty. Johnson then suggested that they give appellant the benefit of the time appellant had been in jail, and fix the penalty at twenty-three years. Those jurors who favored fifteen years would not consent to twenty-three, but they finally agreed on twenty-one years. Juror Witt testified that he thought there was something said about the verdict of the other jury. He thought he said something about it himself. Some of the jurors stated the term heretofore given was twenty and some twenty-five years; did not remember how many thought it was twenty-five. The juror Cogdell testified that he stated appellant had been given twenty-five years by the other jury, but thought he was the only man who spoke of it; that he thought one said it was twenty years, and some one said it was twenty-five. He thinks this last statement was after witness had said it was twenty-five years. Juror Brown stated that several jurors said, "Give him twenty-five years," when some one said it was like the other trial. One juryman said, "Don't do that; it looks too much like the other trial." Juror Madewell stated some one of the jurors said the other jury assessed the punishment at twenty-five years. Juror Green testified that the verdict of the other jury was referred to, some saying the penalty assessed was twenty years and some twenty-five years. Juror Cogdell stated that it would not do to give him twenty-five years; it looked too much like the other jury. In Lankster v. State, ante, page 298, we decided the exact question here under discussion. In that case one of the jurors mentioned the fact, in the presence of the jury, that appellant had been tried twice before, the first jury giving him twenty-five years, and the second fifteen years, in the penitentiary. Another juror disputed the number of years in the last verdict, stating it was only ten years. In the case at bar all of the jurors testified that the discussion of the former trial did not influence them in making up their verdict. We find the same statement by the jurors in the Lankster case. As stated in the Lankster case: "We do not believe, in a matter of this sort, we are authorized to speculate as to possible injury that may have accrued to appellant. The jury were guilty of misconduct in referring to the former convictions, and the bare fact that this misconduct was of a character calculated to injuriously affect him is enough. Under the facts here stated in the bill, the court should have promptly granted a new trial, and should then have set on foot an investigation, and have meted out to those jurors guilty of misconduct a proper punishment. As the matter is presented to us, the record shows a plain violation of our statute on the subject, which was made to secure a defendant a fair and impartial trial by jury, and no recourse is left us except to reverse the case, and send it back, that it may be tried under the rules of law by a fair and impartial jury." Mitchell v. State, 36 Tex.Crim. Rep.; Terry v. State (Texas Crim. App.), 38 S.W. Rep., 986; Darter v. State,
The learned trial judge gave an able, fair, and impartial presentation of the law applicable to the facts in his charge to the jury; and there are no bills of exception that require a reversal; in other words, the record is errorless except the misconduct on the part of the jury that appellant complains of. This misconduct is so reprehensible and is so fraught with probable injury to the rights of appellant, that we can not say that it was not calculated to injure his rights. Instead of a fair and impartial judgment by the jury upon the facts and conclusion from those facts as to the punishment that the law authorized to be meted out to appellant, we have a verdict predicated probably upon the supposed action, in part at least, of a former jury. This is not a fair trial under the laws of this State, nor is it a deduction from the evidence. We can not permit such a verdict to stand.
Because of the misconduct of the jury in discussing the former verdict, the judgment is reversed and the cause remanded.
Reversed and remanded.
