1886 Tex. Crim. App. LEXIS 89
Tex. App.
1886
Willson, Judge.

I. Defendant gave the crockery and the caster to the witness Helen Jones at the same time. This fact is sufficient to warrant the conclusion that he took these articles at one and the same time.

II. As to the value of the crockery and caster the evidence is conflicting. Shaw, the owner of the articles, testified that their market value exceeded $20, while other witnesses placed their value at less than $20. It was for the jury to determine the question of value, and there being evidence supporting the Verdict, this court will not disturb the finding of the jury.

III. This conviction does not rest alone upon circumstantial evi*660dence. Defendant told the witness, Helen Jones, that he had stolen the crockery and caster from Hr. Shaw. Hence the omission of the court to charge in relation to circumstantial evidence, or to charge fully upon that subject, was not error.

IY. It appears from defendant’s motion for a new trial, and the testimony taken in relation thereto, that while the jury were deliberating upon their verdict a member thereof stated, in the hearing of some of the other members, that he had once been robbed by a porter. It is urgently insisted by counsel for defendant that this deprived the defendant of a fair and impartial trial, because it was proved on the-trial that at the time defendant committed the theft for which he was being tried, he was employed in the capacity of porter, by Shaw, the owner of the goods stolen. The juror who made the statement complained of insisted that defendant should be more severely punished because he committed the theft while serving as a porter. He insisted upon assessing the punishment at four years’ confinement in the penitentiary, but finally agreed to the period of three years. Hine of the jurors who tried the case testified before the court upon the hearing of the motion for new trial, and each of the nine stated positively that their verdict was not influenced by the statement complained of, but that they agreed to the term of imprisonment fixed by the verdict without being in the least induced to do so by said statement. It further appears that said statement was not made by said juror until after the jury had agreed upon a verdict of guilty, and that several of said jury, before said statement was made, were in favor of fixing the punishment at three years’ confinement in the penitentiary, and some were in favor of making it four years, while two were at first in favor of making it two years. It very conclusively appears from the testimony of the jurors, that the statement complained of did not and could not have influenced the verdict upon the question of the defendant’s guilt, and it is also clear that the jurors who heard the statement were not influenced thereby in assessing the punishment. It is well settled in this State that misconduct of the jury will not be ground for a new trial, unless it is shown to be such as has affected the fairness and impartiality of the trial. (Jack v. The State, 26 Texas, 1; Johnson v. The State, 27 Texas, 758; Austin v. The State, 42 Texas, 355; Anschicks v. The State, 6 Texas Ct. App., 524; Allen v. The State, 17 Texas Ct. App., 637.)

Y. But we are not prepared to say that the statement of the juror, complained of, constituted misconduct such as the law contemplates as a ground for new trial, even if it did have the effect to *661increase the defendant’s punishment. The statement had no reference whatever to the question of defendant’s guilt, and could in no way have affected the determination of that issue. It was a statement made by way of argument, explaining the juror’s reasons for being in favor of assessing a greater punishment than in ordinary cases of theft. He had himself suffered loss by theft committed by his porter, and he thought that this class of employees should be dealt with severely when they stole the property of their employers, because they were trusted, and could not be watched and detected as others could be in whom no such confidence was reposed. We have found no decision in this or any other State which goes to the extent of holding such statements to be misconduct. It seems to us that it would be a dangerous and exceedingly pernicious practice for the courts to permit the sanctity of the jury room to be invaded, and jurors to be interrogated as to the arguments used in their deliberations, and the influence of such arguments upon their minds, and the reasons and considerations upon which their verdicts were based. There might arise, perhaps, an extreme case in which such a practice would be tolerated to prevent flagrant wrong and injustice, but this court would not be willing to sanction the procedure unless it should manifestly appear that the ends of justice imperatively demanded it. If it were permitted to attack and set aside a verdict because of arguments and reasons advanced and urged by jurors in their deliberations thereon, it would destroy free discussion and interchange of opinions among jurors. It would open the door to a searching inquiry in relation to every act and word which transpired in the jury room, and would subject each individual juror to be placed upon trial before the court to answer for the soundness and propriety of the opinions expressed by him in the jury room.

There is no warrant in the law for such a practice. While by our Code it is competent to prove misconduct by the voluntary affidavit of a juror (Code Crim. Proc., art. 777, subdiv. 8), it is nowhere intimated even that jurors can be brought into court by process and compelled to go upon the witness stand and testify as to arguments used, opinions expressed, and votes given by jurors in the jury room. Before the adoption of our Code, the affidavit of a juror was not admissible to prove even misconduct in the jury (Cannon v. The State, 3 Texas, 31), and such affidavits have never been regarded with favor bv the courts. (Hodges v. The State, 6 Texas Ct. App., 615.)

*662[Opinion delivered March 17, 1886.]

We are of the opinion that the court did not err in overruling defendant’s motion for a new trial, and that there is no error in the conviction; wherefore it is affirmed.

Affirmed.