Jenkins v. State

41 Tex. 128 | Tex. | 1874

Moore, Associate Justice.

We have given this case that consideration which the grave character of the offense of which the appellant is convicted unquestionably demands. But after a full and careful examination of the record, we are forced to the conclusion that it presents no ground for the reversal of the judgment.

There are only two questions presented by the record for which it is claimed the judgment should be reversed. First, it is said the fifth paragraph of the charge given by the court did not sufficiently show the distinction between murder in the first degree and murder in the second degree, and was therefore calculated to mislead the jury. It was not the purpose of the court, by this paragraph of the charge alone, to draw the distinction between murder in the first and murder in the second degree. It was evidently intended by the paragraph, in connection with the preceding portions of the charge, to present to the jury such principles and rules of law as would enable them, by their proper application to the evidence, to say whether the defendant was guilty of murder in the first degree. Where the evidence is susceptible of a construction which would-warrant a verdict of guilty in the lower degree, there is unquestionably error if the court fails to instruct the jury upon this view of the case. But if, when we look to the entire charge, the jury are given sufficient and appropriate instructions to enable them, by their application to the evidence, to correctly determine of which grade of offense the person should be convicted, if guilty, this is all that is required. Most assuredly, if murder in the first degree is properly defined and explained to the jury in one paragraph, the charge is not subject to objection, because the distinction between it and murder in the second degree is not adverted to and explained therein, if the law as to it is also properly given in a subsequent part of the charge. hTor can it be said that the jury are liable to be misled merely by such an arrangement of the instruction given them by the court.

A review of the facts does not lead to the conclusion, beyond all doubt, that it was necessary in this case for the court to instruct the jury upon murder in the second degree. But this was done in the eighth and ninth paragraphs of the charge, to which no objection was made. What we have said answers the literal exception taken to the charge as presented in the record. We suppose, however, it must have been intended by the objection to this particular part of it to insist that it did not properly define murder in the first degree, but did so in a manner calculated to lead the jury to find appellant guilty of the higher grade of offense, when, under proper instructions, they might have found him guilty of the lower. But we cannot agree that the charge complained of is liable to any such objection. It clearly presents, we think, in view of the facts in this ease, sound rules and correct principles of law for the guidance of the jury in determining whether or not appellant was guilty of murder in the first degree. The instructions are in strict accordance with the principles announced by this court in former decisions.

The second ground upon which it is maintained the judgment should be reversed is, the alleged separation of one of the jurors from his fellows. The code in express terms forbids, in cases of felony, the separation of the jury, after they are sworn and impaneled, until they have returned a verdict, unless by permission of the court, with the consent of the District Attorney and the defendant, and then in charge of an officer. (Code Grim. Procedure, arts. 605,. 607.) And certainly in capital cases it is of the utmost importance that this rule should be strictly observed; and the jurors themselves, as well as the officers of the court, should be careful to guard against even the slightest violation of it. We think there was an impropriety in the conduct of the juror complained of in this case, which should have been avoided, though it is evident, if it can be said that the juror had separated from his fellows, he did so nominally, rather than in sense and contemplation of law. Although the juror left his fellows and the officer in charge of them standing in the street, he barely entered the door of a saloon immediately on the street to get a cigar, was in full view and hearing of the officer and his fellows all the time, and had no conversation whatever with any one. (Jack v. The State, 26 Tex., 3.)

But if we admit that this was such a separation of the jury as is forbidden by the code, it certainly is no ground for the reversal of the judgment, unless there was some reason to suppose wrong or injustice might have resulted from it to appellant. Article 672 of the Code of Criminal Procedure says: “Kew trials in cases of felony shall be granted for the following reasons, and no other: ” after which it enumerates ten distinct grounds, but in none of these is it intimated that a new trial may be granted merely from the fact of the separation of the jury. Thé only ground here set forth under which it can be claimed the court may grant a new trial on account of the separation of the jury, is the eighth, which reads: “When, from the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial, it shall be competent to prove such misconduct by the voluntary affidavit of a juror, and a verdict may in like manner, in such cases, be sustained by such affidavit.” But the record does not show the slightest reason to suppose that appellant has not received a fair and impartial trial, consequently the court was not authorized to grant a new trial upon this ground.

There is no error in the judgment, and it is therefore affirmed.

Affirmed.