The bills of exception are numerous. Discussion of them has been made in the original opinion. The evidence heard upon the trial and the record presenting the complaints for review are voluminous to a degree that precludes a detailed discussion upon this hearing.
The matter which the appellant stresses and to which he *Page 189 specially directs our attention is that presented in bill of exception No. 8, from which it appears that after several witnesses for the State had been examined and cross examined a telegram addressed to E. M. Pendleton, one of the jurors, was brought into court and delivered to the judge presiding. Without informing the jury that the telegram was a death message, the court, after informing counsel for both the State and the appellant that it was a death message and after informing them that it was his intention to do so, delivered the telegram to juror Pendleton. The bill, after setting forth the facts above stated and those embraced in substance in the court's qualification to the bill, states that a mistrial was sought, the request for which was made by the appellant's counsel and also by the appellant in person.
Appellant asked for a mistrial upon the following grounds:
"Comes now the defendant by and through his attorneys and moves this court that a mistrial be declared in this case, and that the jury be discharged, upon the following grounds, to-wit:
"1. Because it appears from the telegram received by one E. M. Pendleton, one of the duly and legally selected and qualified jurors in this case, which telegram was received from Fred Pendleton, and which was sent from Delaware, Ohio, that the father of Fred Pendleton, who is the brother of the juror, E. M. Pendleton, had died, and which telegram is as follows, to-wit:
" 'Delaware, Ohio. " 'E. M. Pendleton, " 'Box 834, " 'Edinburg, Hidalgo County, Texas. " 'FATHER DIED THIS A. M. ADVISE IF YOU CAN COME. " 'Fred Pendleton.'
"And the defendant, in view of the fact that this is a murder case is apprehensive of the effect that the said death message may or might have upon the mind of the juror, E. M. Pendleton, and which effect would prevent the juror from being a fair and impartial and unbiased juror, as provided by law and the Constitution of the State.
"2. Defendant further represents to the court that at the time of the said juror's receiving the death message, that the effect upon the juror was very noticeable, in that, the said juror, while discussing the matter with the court, was shedding tears and was in a semi-sobbing condition."
From the court's qualification of the bill it appears that *Page 190 after the juror, E. M. Pendleton, had discussed the matter with his wife, upon permission and in the presence, but without the hearing of the court and of counsel, he (the juror) stated to the court that both he and his wife had agreed that it would be useless and futile to attempt to go to the funeral, and after discussing it with the court, he stated that he felt that he could and would go on with the trial of the case as one of the jurors, and that his feelings and the loss of his brother would not influence him in any way either for or against the defendant in the case, and that he was entirely willing to remain on the jury and to decide the case fairly alike to the defendant and the State, without reference to the telegram which he had received.
After the juror had assured the court that he would be fair alike to the State and the defendant, the court was satisfied that the juror would be in a proper mental attitude to serve as a juror during the remainder of the trial of said case.
The court certifies that as the juror approached the judge's desk, at the request of the court, after he had ascertained the contents of the telegram, Mr. Pendleton was visibly affected thereby in that he talked to the court with tears in his eyes and his lips and voice trembled, and he stated to the court that he would like to discuss with his wife the question of attending the funeral, and requested the court that he be permitted to discuss the matter with his wife, which request was thereupon immediately granted by the court, by and with the consent of all counsel in the case in the presence of the court, but without the hearing of the court, and without the hearing of all counsel, both for the State and the defendant; and the defendant himself being present in the court room but not within hearing of the juror or his wife. After said juror had conversed with his wife, the court again interrogated the juror and noticed that the juror had apparently regained his normal composure. The juror stated that he had decided not to attend the funeral but would remain on the jury and be a fair juror, that is, fair alike to the State and to the defendant in the case.
The court further certifies that on the motion for new trial the State introduced juror E. M. Pendleton, who testified substantialy as follows relative to the telegram received by him: "That the said juror was approximately fifty-four years old; that he had had about eighteen deaths in his immediate family — his brothers and sisters and their respective children, and that he had not associated with his brother very much in the last twenty years, and hadn't seen him in five years; when *Page 191 he first read this telegram, it naturally upset him, because it related to the death of his brother; that he didn't know what to do about it until he talked to his wife, and that after the court had allowed him to talk to his wife, by and with the consent of all counsel, that he decided it would be useless for him to think about going to the funeral, because the distance was too far, and it would be too expensive. That the court asked if he wanted to proceed as a juror in the case, and that after he had decided it would be impossible for him to attend his brother's funeral, he made up his mind that it would be best for him to remain as a juror in said cause, and that he made up his mind that the contents of said telegram would not affect him in any way in arriving at a fair and impartial verdict in the trial of said cause, and that the telegram and the contents contained therein did not in any manner affect him in arriving at a verdict in said cause. Witness further testified that the telegram and its contents relative to the death of his brother did not influence him in any way whatsoever, and that during the day when the trial was being held, that he completely and entirely eliminated the matter from his mind, except at night when he went back to the jail where the jury was quartered for the night, he naturally recalled that his brother was dead and thought about it, but that it had no effect on his verdict."
From the bill we quote further: "With the foregoing qualification, the bill of exception No. Eight is found by me, as well as by the State's attorneys, to be correct, and is hereby allowed, approved and ordered filed by the Clerk of the District Court, 92nd Judicial District, Hidalgo County, Texas, as a part of the record in this cause, on this the first day of August, A.D. 1932."
The position taken by the appellant upon this appeal and stressed in his motion for rehearing is the claim that articles 671, 673 and 753, subd. 7, C. C. P., were transgressed in the conduct of the trial. Article 671, supra, reads as follows: "No person shall be permitted to be with a jury while they are deliberating upon a case, nor be permitted to converse with a juror after he has been impaneled, except in the presence and by the permission of the court, or except in a case of misdemeanor where the jury have been permitted by the court to separate. No person shall be permitted to converse with the juror about the case on trial."
Article 753, C. C. P., sets out the grounds upon which a new trial may be had. Subdivision 7 of the article contains the following: "Where the jury, after having retired to deliberate *Page 192 upon a case, have received other testimony; or where a juror has conversed with any person in regard to the case," etc.
In support of his contention appellant cites the following cases: Davis v. State, 60 S.W.2d 783; Lewis v. State,58 S.W.2d 827; Mauney v. State, 210 S.W. 959; Chappell v. State, 50 S.W.2d 327; Gilliam v. State, 296 S.W. 600; Toussaint v. State, 244 S.W. 514.
In considering this appeal note is to be taken of the fact that subdivision 7 of article 753, quoted above, has reference to communications with the jury during their retirement or at least when not in the presence of the court.
Article 671, supra, inhibits unauthorized conversations with a jury at any time after he has been impaneled.
The question under consideration, as presented by the record, is whether there was harmful error committed in the presence of the judge during the trial. It is apparent from the bill of exception and from the record, as shown in the quoted bill, as qualified, that the conversation which took place between juror Pendleton and his wife was in the presence of the court withthe consent of the appellant and his counsel. It is thought that the bill, as drawn and qualified, justifies the conclusion that the matter in mind at the time the bill was taken is not a violation of article 671, supra, but that the matter before the court was the contention of the appellant that the mind of thejuror after receiving the telegram advising him of the death ofhis brother was in a condition to render him unfit for serviceupon the jury in a case involving the death penalty. Upon the delivery of the telegram to the juror by the messenger boy all parties present and interested were informed of the arrival and contents of the telegram. With the consent of the attorneys the juror was interrogated by the judge. Upon learning that the telegram advised of the death of his brother, the juror requested that he be allowed to talk to his wife. She was sent for with the acquiescence of both the court and counsel. A conversation took place in the presence but not in the hearing of the court and counsel. No objection was urged at the time. On the contrary, all that occurred was with the consent of the parties. After the conversation with his wife, juror Pendleton indicated his willingness to proceed with the trial. The point made by appellant is that under the circumstances the state of mind of the juror was such as to render him unable to perform jury service in the case. The bill of exception is to the effect that the juror had a conversation with his wife. *Page 193 Had objection been made, it apparently would have been withinthe power of the court to call the wife of Pendleton andreceive her version of the conversation which took placebetween her and her husband. Pendleton had already communicated to the court the contents of the conversation.
The case must be dealt with here upon the record that was made at the time of the trial. The statute, article 671, supra, declares in substance that there shall be no conversation with the jurors except in the presence and by permission of the court. This was literally complied with in the present instance. We would not be disposed to give the term "in the presence of the court" such interpretation or effect as might, in all cases, sanction a conversation which was not in the hearing of the court.
We are not of the opinion that paragraphs 9, 10 and 11 of the court's charge required or authorized a reversal of the judgment. The paragraphs mentioned must be appraised in connection with the charge. Paragraph 9 of the charge embraces the clear statement that unless the death of the deceased was proved and the body identified as the wife of the accused, there could be no conviction. Paragraph 10 merely defines homicide as the "destruction of one human by the act, agency, procurement or culpable omission of another." Paragraph 11 is to the effect that if there was a failure on the part of the State to prove clearly and satisfactorily beyond a reasonable doubt that the body of Dee Hogan had been found and identified so as to establish the fact of death, there could be no conviction; and further, that the disappearance of Dee Hogan could not be taken into consideration by the jury for any purpose in determining the identity of the body or portions thereof. The exception to the charge in paragraph 9 is to the effect that the charge authorized the conviction of the accused if the body of Dee Hogan had been found and identified, and that the charge does not adequately advise the jury with reference to the corpus delicti. Appellant cites Chandler v. State, 131 S.W. 598; Miller v. State, 13 S.W.2d 865.
Paragraph 12 of the charge immediately following and criticised by the appellant is a comprehensive and approved charge on the law of circumstantial evidence. The precedents cited by the appellant and listed above are not regarded as supporting his contention that the charge in question was erroneous or in any sense incomplete.
Appellant possessed a farm and ranch some miles from the nearest city, upon which ranch he and his wife lived alone. *Page 194 Jarratt Hogan, a son of the appellant, visited the ranch on November 14, 1932, at which time his mother was present. He again visited the ranch on November 18th, and was told by appellant that his wife had deserted him; that she left on November 16th; that the two had been riding in the pasture and driving up cattle; that upon his return she was gone; that search for her was without result. Appellant claimed that her good clothes and some money were also missing. He referred to some money that had been received from the sale of cattle. Appellant told the witness that he had taken his wife to Harlingen on November 15th to have her hair dressed. No notice of the disappearance of the mother was given by appellant to her daughter who lived in San Antonio. On a subsequent occasion, appellant requested his son to suppress the fact that a $20-bill had been taken from some money which was owned by the deceased, and further requested witness to claim that the money was borrowed from his mother by the witness. After the disappearance of his wife, appellant attended a dance on one or more occasions and took part in the festivities. At that time he accounted for the absence of his wife at the dance with the statement that the condition of the roads would not permit her coming. He made several contradictory statements with reference to the absence of his wife. Among them was the statement that she had received an injury from a fall and had been sent to San Antonio; also that she had been sent to San Antonio and had died. In his testimony upon the trial the appellant did not controvert the making of these contradictory statements. With his consent his premises were searched by many people. The body of the deceased was finally discovered in a shallow grave upon the premises of the appellant. The head of the deceased was detached from the body. The body was in an advanced state of decomposition. It was exhumed and taken to a morgue where many people saw and identified it as the deceased. All of them gave testimony to that effect. The children of the deceased gave testimony upon the trial to the effect that they did not look at the body of the deceased but circumstances detailed by many witnesses who saw the body of the deceased left no question that her children were aware of the revolting condition in which her remains appeared. The identity of the body as that of the deceased (wife of the appellant) was established by many witnesses who saw it after it was disinterred, and by various circumstances, including scars upon the arm, a ring upon the finger and the wearing apparel found upon the body at the time of the disinterment. *Page 195 The statement of the appellant that the deceased had taken away her good clothes upon her disappearance was controverted by testimony to the effect that parts of them had been found burned in a barbecue pit which was upon the premises of the appellant. It was claimed by the appellant that his wife disappeared on November 16, 1932. According to the testimony, upon that date he had made an engagement to deliver some cattle which he had sold. When the purchaser went to the ranch of the appellant to receive the cattle, he was informed by appellant that they had not been dipped according to his promise. It became necessary for the purchaser to return without the delivery. The purchaser described the conduct of the appellant upon the occasion and related that he had considerable difficulty in finding them. After finding the cattle upon his premises, appellant confessed that it was his fault in failing to have them ready for delivery and made an appointment to do so on the following day. The appellant's cattle were mortgaged. Upon calling on the following day (November 17th) the witness was informed by appellant that his wife had been seriously hurt when thrown from a horse and had been taken to San Antonio on the previous day, which was November 16th. On the previous visit of the witness to the appellant's home he had seen the deceased there. Neither on the 16th nor on the 17th of November, when he received the cattle, was she seen by him. The witness was told by the appellant that his wife had left him.
While searching for the body of the deceased, blood was observed upon the root of a tree. The tree also had blood upon it and there was a puddle of blood near the root of the tree. Part of a root of a hackberry tree was discovered and exhibited upon the trial. It was found a few feet from the blood mentioned. The root was about eighteen inches in length and was bloody. It was partly covered with dirt. This root was found near the barbecue pit in which corset staves and other objects of apparel were found partly burned. The blood upon the objects mentioned, namely, the twig and the root, were pronounced by an expert physician to have been human blood.
Appellant claimed that when his wife disappeared she was wearing his rubber boots. The disinterment revealed that she was wearing tennis shoes which she was accustomed to wearing.
Some of the articles disinterred with the body were preserved and exhibited upon the trial. Some were destroyed due to their condition. The club was shown to weigh about seven *Page 196 or eight pounds. The clothes worn by the deceased at the time of the disinterment were exhibited to the children of the deceased and identified by them, as was likewise the ring upon her finger.
Appellant made threats to kill the persons who were searching his premises. However, he afterwards retracted them.
Many circumstances, due to the examination of the barbecue pit and its contents, tended to controvert the appellant's contention that his wife's good clothes had been taken away by her.
The body of the deceased was found about 2500 feet from the dwelling-house and was on the premises occupied by the appellant. The testimony of the doctor was to the effect that the skull of the deceased was fractured. There was a fracture four or five inches in length. The side of the skull on the left was sunken down where the greatest injury had taken place. The top of the skull was also sunken about a quarter of an inch and crushed down. The doctor expressed the opinion that death resulted from the fracture. Apparently the examination indicated that death was instantaneous. The wound bore the appearance of having been inflicted with some heavy club or object of that kind.
Bills of exception Nos. 13, 15 and 16 relate to substantially the same matter. Jarrett Hogan, a son of the deceased, after testifying that he did not look at the body of the deceased, was asked by the district attorney the following:
"Q. Why didn't you? A. No one requested it and I did not want to look at it."
Another member of the family, answering a similar question, said: "I wanted to remember my mother the way I last saw her." Another said: "I did not view the body on account of the state of decomposition, and I did not care to see my mother that way." Similar testimony was given by other children of the deceased.
The circumstances under which the declarations of the children that they did not want to see the body were made exclude the idea that the remarks challenged were prejudicial to the appellant.
The cases cited by the appellant, namely, Godsoe v. State,108 S.W. 388; Garrett v. State, 106 S.W. 389; Rangel v. State, 22 Texas App., 642; and Thompson v. State,123 S.W. 593, have been examined. The citations are not discussed in detail as they are not regarded as supporting the contention of the appellant under the circumstances developed by the present record. The testimony of Jarrett Hogan, set out in bill No. *Page 197 13, of which complaint is made, came into the case upon redirect examination after extended cross examination by the appellant's counsel.
The evidence adduced upon the trial, measured by the strict rule demanded by the law governing circumstantial evidence, cannot, we think, justly be regarded as inadequate to support the conclusion of the jury that the appellant, with malice, murdered his wife in the manner and by the means declared in the record.
After the most careful examination and consideration of the record, nothing has been perceived in the trial which would authorize a reversal. We are constrained to decline to set aside the finding of the jury which has the approval of the trial judge who heard all of the evidence. It is therefore the duty of this court to overrule the motion for rehearing, which is accordingly ordered.
Overruled.
ON REQUEST TO FILE SECOND MOTION FOR REHEARING.