McClure v. StateMcClure v. State
- Reporters:
- , ,
- Before:
- Hawkins
Lead Opinion
Conviction in for possessing intoxicating liquor for the purpose of sale, penalty two years in the penitentiary.
The evidence justified the verdict and judgment. The lеgal questions raised may be disposed of without burdening this opinion with a lengthy recital of the facts.
When the State proposed to prove by the officers thаt they found in defendant’s barn a concealed door in the bottom of the “horse trough” which led into a cellar in which was found a complete still and severаl gallons of whiskey, the objection was made that it had not been shown that the officers had a search warrant authorizing the investigation. It is nowhere certified in thе bill that in fact they had no search warrant. The statement of an objection is not a certificate that the facts are true which form the basis of the objеction. (See See. 209, Branch’s Annotated P. C.). Even if the bill was not defective in the particular mentioned, the matter complained of would present no errоr. Welchek v. State, 93 Texas Crim. Rep. 271, 247 S. W. 524; Harris v. State, 93 Texas Crim. Rep. 349, 248 S. W. 54; Bell v. State,-Texas Crim. Rep.-. 250 S. W. 177; Burks v. State.-Texas Crim. Rep.-, 260 S. W. 181.
Defendant claimed as reasons why he should be granted a new trial: (1) That the jury had discussed and considered the defendant’s failure to testify in violation of Art. 790 C. C. P.; (2) That therehas been a separation of the jury prohibited in felony eases by Art. 744 C. C. P.; (3) That the jury after retirement had received other evidence in сontravention of Sub. 7, Art. 837 C. C. P. The evidence produced upon hearing the motion for new trial negatived completely that there was any mention or referеnce whatever to the fact that defendant did not testify. Upon the issue of separation the evidence showed that one of the jurors (Schotts) had nevеr served on a jury in a felony case but had frequently been on juries in civil eases, and was unaware of a different rule obtaining relative to separation оf juries in the two classes of cases. As the jury passed from the court room on the way to the jury room Schotts left them, went through! the hall, downstairs and across the strеet to a drug store for the purpose of getting a cold drink. In the hall he asked J. D. Buster, an attorney, how long they would have and *466 was told about five minutes. Buster saw the jurоr speak to no one else in the hall, and saw him go down the stairway. Thinking that he was one of the jurors and noticing that he was alone, Buster stepped into the sheriff’s office and notified that official. The sheriff looked immediately out of his office, saw Schotts hurrying across the street to the drug store, saw him stop at the cold drink stand, get a drink and come directly back to the court house where he was met by the deputy in charge of the jury who had discovered his absence. The juror wаs not away from the other jurors longer than three minutes. He spoke to no one save Buster. These facts were established by the witnesses other than the juror himself. In Watson v. State, 82 Texas Crim. Rep. 305, 199 S. W. 1113, this court, in commenting on a similar incident, said: “The purpose of the statute (Art. 744 C. C. P.) is to preserve the purity of the verdict, and where it is shown that a temporary separation of one of the jurors from his fellows did not and could not have affected the verdict or impartiality of the trial, a. reversal is not rеquired nor authorized. ’ ’ Mam-authorities are collated in Watson’s case sustaining it. The burden was on the State to show that the separation could not have bеen harmful. This burden was discharged in the present instance.
Upon the matter of the jury receiving other evidence after their retirement, defendant alleged thаt before the verdict was agreed upon the juror Echols stated to the other jurors that “defendant was am old timer in the business and a chronic or hardened viоlator of the law: that he had been indicted many times for violations of the prohibition law, and had been tried but had never been convicted.’’ Upon the issue raised by this everment the evidence was conflicting. The foreman of the jury testified that he heard Echols say the law ought to be enforced and that violators оf the law ought to have such penalties as would deter them from violating the law in time to come. Echols admits making this general statement.- We observe no impropriety in it. He denies making at any time the statement attributed to him by defendant. The foreman testified that he heard Echols say substantially what the defendant complаins about, and was of the opinion it occurred before an agreement on the penalty was reached, but frankly states he may be mistaken as to when hе heard it, and that it may have been after the verdict was agreed upon. The juror who seems to have had the argument with Echols as to what punishment should be assеssed swears positively that Echols said nothing about defendant’s previous record. Another juror says the first he heard of anything of the kind was after they had returned the verdict, had been discharged, and while they were being paid off. Other jurors disclaimed hearing such statement made by Echols or any one else in the jury room. This is a sufficiеnt statement to show that the evidence was in conflict and presented a disputed issue which was determined in favor of the *467 State. There is no showing of an abusе of judicial discretion in’ respect to the matter, in the absence of which the finding of the presiding judge will not be disturbed. Sanchez v. State, 30 Texas Crim. Rep. 518, 236 S. W. 734; Manley v. State, 92 Texas Crim. Rep. 537, 244 S. W. 533, and cases therein cited.
In passing sentence upоn defendant the court overlooked the indeterminate sentence law. The sentence will be corrected to read that defendant be confinеd in the penitentiary not less than’ one year nor more than two years.
As so reformed the judgment is affirmed.
Affirmed.
Addendum
ON MOTION FOB REHEARING.
HAWKINS, Judge. —Only two bills of exception are found in the record; one complains of searсh without warrant, the other of misconduct of the jury. Roth were considered in the original opinion, and appellant does not question that proper disposition was made of them.
Complaint is made, however, that we failed to discuss a special plea interposed by appellant in which he sought to raisе the question of former conviction and a request for postponement. The number of this case in the court below was #16,827. The special plea avers that appellant had been tried in #16,828 and that the jury had returned a verdict of guilty in said cause; that the judgment was pending against him subject to his right of appeal; that thе offense of which he had been convicted in #16,828 was the same offense and transaction for which he was about to be tried in the present case. He аvers that a copy of the indictment in #16,828 is attached to the plea, but none appears in the record before us. After reciting the foregoing facts, he pleads said former conviction in bar of a prosecution in the present case and asks the court to postpone the trial until final disposition is made of cause #16,828. The record fails to show, either by bill of exception or by entry of order relating thereto upon the court minutes, any action upon sаid special plea. The indictment in cause #16,828 was before the court below and he could therefore take judicial knowledge of its contents. It is not bеfore this court in a manner to be considered, hence we must assume that the action or failure to act upon the special plea was cоrrect.
It appears from the averments in the motion for new trial that the offense charg’d in cause #16,828 was for manufacturing intoxicating liquor, but we cannot look to the motion for new trial in aid of the special plea.
We further note that in approving one of the bills of exception heretofore referred to, the court says:
*468 “ * * * the ease against this defendant referred to by witnesses as having been tried and same evidence used as on this trial is now pending in this court; granted the defendant a new trial.”
There being no bill complaining of the action or failure to act upon the special plea, the matter is not properly before us for review.
The motion for rehearing is overruled.
Overruled.