The appellant was tried and convicted of the offense of murder with malice aforethought, and his punishment was assessed at confinement in the State penitentiary for a term of 7 years.
The record shows that on the afternoon of February 3, 1933, the appellant shot and killed Willis Sanders in the town of Milam. It appears from the record that a few minutes prior thereto Jack Wilson and Noble Russell were engaged in a quarrel; that Jack Wilson picked up a plank and advanced toward Russell in an attitude of striking Russell with it; Russell drew his knife and told Jack Wilson that if he struck him, Russell, with that plank, he, Russell, would cut his throat, whereupon Jack Wilson dropped the plank and walked away. About this time the appellant came up and said something to Russell which none of the witnesses seem to have understood, *Page 182 whereupon Russell used some very indecent language toward and concerning the appellant. The appellant then drew his pistol and shot twice at Russell who dropped behind a brick pillar at a filling station. At this time Willie Sanders appeared on the scene. He and the appellant went to the appellant's automobile which was parked but a very short distance from the filling station and engaged in what appeared to be a friendly conversation, when Noble Russell suddenly emerged from behind the brick pillar with a quart bottle of cylinder oil and struck at appellant. Willie Sanders knocked the bottle up which diverted its course and it hit the rear of the appellant's automobile. Then all three, Russell, Sanders, and the appellant went into a huddle for a second or two when Russell and Sanders began to run down the street along the side of a store building where appellant pursued them shooting as he went. Willie Sanders was shot in the back from the effects of which he died about 30 minutes after the occurrence. The record fails to show that there was any ill feeling existing between the appellant and Willie Sanders or that the appellant had any animosity towards him.
The appellant for the first time in his motion for new trial raises objections to the court's main charge, but we can not consider the same because none were interposed at the trial within the time prescribed by law. See Art. 658, C. C. P., and the following authorities: Terry v. State, 98 Tex. Crim. 540; Roberts v. State, 99 Tex.Crim. Rep.; Edwards v. State, 91 Tex.Crim. Rep..
The appellant also complains of the action of the trial court in overruling his motion for new trial based on the ground of misconduct of the jury in referring to the failure of the appellant to testify. Several jurors appeared at the hearing and testified that before reference was made to the appellant's failure to testify that some were for the minimum punishment of 2 years, while some were for 25 years. One of the jurors testified it was hard to say whether he considered it as a circumstance in the case. He could not say whether it was a general discussion by the jury or not as he did not know whether all of them engaged in the discussion thereof. We do not deem it necessary to enter upon an extended discussion of this question other than to quote from the opinion of this court in the case of Buessing v. State, 63 S.W. 318, as follows: "All the jurors explain that they were not influenced by this discussion, but it is generally conceded that the matter was alluded to in the jury room and before they had agreed *Page 183 on their verdict. As has been repeatedly held, our statute on this subject is mandatory; and, when it has been violated, we will not speculate upon any possible injury that may have ensued to appellant." The following cases are in accord with the case of Buessing v. State, supra: Mizell v. State,197 S.W. 300; Boozer v. State, 198 S.W. 295; Walling v. State,128 S.W. 624. Many other cases might be cited. In the case under consideration all of the jurors admitted that the matter was discussed in the jury room before they had arrived at their verdict.
Having reached the conclusion that the trial court erred in not granting the appellant's motion for new trial, the judgment of the trial court is reversed and the cause is remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON STATE'S MOTION FOR REHEARING.