40 S.W. 496 | Tex. Crim. App. | 1897
Appellant was convicted of murder in the first degree, and received a life term in the penitentiary, and prosecutes this appeal. He excepted to the action of the court in overruling his motion for a continuance, but on an examination of the record, we find no error in this ruling of the court. The only serious question in this case is with reference to the separation of the jury. In the motion for a new trial, appellant alleges that after the jury were sworn and empaneled, and after the evidence, argument of counsel, and charge of the court had been submitted to them, and they had retired to consider of their verdict, one of the jurors, Alva Harper, separated from the jury, and was absent from them for thirty-six hours. A number of affidavits, both for the State and the defendant, are appended to this motion. The affidavits all agree to the effect that said juror was absent from the jury thirty-six hours, by permission of the court, it being made known to the court that said juror had a very sick child; and they all agree to the effect that said juror was not in charge of any officer of the court during said separation. The affidavits introduced on the part of the State show that said separation was by the consent and agreement on the part of both the State and defendant, and that defendant agreed that the juror might go to his home alone, not in charge of an officer. The affidavits on the part of the defendant show that defendant agreed that said juror might go to his home to attend on his sick child, but that nothing was said as to whether he should or should not be attended by an officer during such separation; that is, the effect of the affidavits on the *609
part of the defendant shows that there was no consent on his part that the juror should not be attended by an officer. In addition to this, it was shown by the affidavit of the juror that during his absence nothing occurred with reference to said cause; that he had no conversation in regard thereto; and that he went to his home merely, and remained there thirty-six hours with his sick child, and returned. The question thus presented to the court was one of fact, whether or not the defendant agreed to the separation as contended for by the State — that is, that during said separation the juror might go to his home unattended by an officer; and we assume that the court found this issue of fact in favor of the State — that is, that the defendant agreed that said juror, Harper, might absent himself from the other members of the jury, to attend on his sick child, and that he need not be accompanied by an officer during his absence. The question for our determination is: Can a defendant in a felony case consent, to the separation of the jury, and agree that the juror separating shall not be attended by an officer? As this question has been before this court a number of times, and there seems to be some confusion in the decisions, we will review such of them as we conceive to be important. It has been held in a number of cases that the separation of the jury, where those separating themselves from the body of the jury were unattended by an officer, would require a new trial, regardless of the question of prejudice; that is, the court would not inquire into the fact whether or not by the separation the defendant had sustained prejudice. See, Brown v. State,
Reversed and Remanded. *612