A majority of the court hold that the trial judge committed reversible error in permitting the jury to view the locus in quo, where the alleged offense was committed, under the circumstances stated in the bill of exceptions. And, in support of the view taken, Smith v. State, 42 Tex. 444, is relied on. *Page 476 While that case intimates very strongly that a view taken by the jury, though with permission of the court, would be error, yet the case seems really to have been reversed upon the insufficiency of the evidence. That case, however, was the view of a sow and pigs, where the alteration of the mark was a material inquiry, and of course an inspection of the animals would obviously have some bearing on the question. Whereas here, merely the ground in the vicinity of the house where the alleged offense was committed was viewed by the jury, and this about a month after the alleged offense. No suggestion is made that evidence material to the case was, or could have been, ascertained by the jury in the case at bar, by a view or inspection of the premises by the jury as agreed to by appellant and his counsel. No objection was urged to the proceeding, as the court certifies appellant agreed to it, and he heard of no objection to the view being taken until a bill of exceptions was presented to him five days after the trial. A different question might arise if this procedure had been permitted over the objections of appellant, but I can see no difference, notwithstanding our statute with reference to views, between this character of illegal testimony and other illegal testimony admitted without objection. Certainly it would not present as grave a case as if the jury had taken a view without the agreement of appellant, and without permission on the part of the court. And yet, we have held that, even in such a case, before a reversal would be authorized, some material error, injurious to appellant, must be shown. McDonald v. State, 15 Texas Crim. App., 492; Darter v. State, 39 Tex.Crim. Rep.; Hardin v. State, 40 Tex.Crim. Rep.. If a case will not be reversed where a jury may have viewed the premises without permission of appellant and the court, in the absence of some material injury shown, much more ought a case not to be reversed where "the view was taken with the consent of appellant and with the permission of the court, and in the absence of any suggestion of injury. I do not believe that article 1451, Revised Civil Statutes, with reference to views, trial by wager of battle, etc., has the potentiality about it placed thereon by the opinion of a majority of this court. In fact, since the decision in the Smith case, supra, many articles of clothing, weapons, etc., connected with the homicide have been viewed by the jury under the authority of this court; and in a number of the States of the Union "views" of the locus in quo are held to be advantageous in the trial of both civil and criminal cases, and are authorized. 1 Thomp., Trials, secs. 875-916, inclusive. I can not agree to the views expressed on this proposition in the opinion, because I believe it sets a bad precedent. Upon the other proposition I agree with the court, and agree to the reversal of the judgment. *Page 477