In the State's motion for rehearing reference is made to the evidence heard on the motion for new trial; reference is also made thereto in our original opinion, and by the trial court in qualifying several bills of exception. We now observe that such evidence is brought forward in bill of exception number seventeen, which is thirty pages in length, and in question and answer form, and contains no certificate of the trial judge that it was necessary to be in such form. The bill is contrary to the statute itself as well as to the innumerable cases upon the subject. Subdivision 1 of Art. 760, C. C. P., as amended, 42d Legislature, 1st C. S., p. 75, Ch. 34, reads as follows: "Where the defendant in a criminal case appeals, he is entitled to a statement of facts certified by the trial judge and sent up with the record; provided that said statement of facts shall be in narrative form."
Subdivision 3 of said Art. 760 provides as follows: "In all felony cases appealed, whenever the State and defendant can not agree as to the testimony of any witness, then so much of the transcript of the official court reporter's report with reference to each such disputed fact shall be inserted in the statement of facts as is necessary to show what the witness testified to in regard to the same, and constitute a part of the statement of facts, and the same shall apply to the preparation of bills of exception. Such stenographer's report, when carried into the statement of facts or bills of exception shall be condensed so as not to contain the questions and answers except where, in the opinion of the judge, such questions and answers may be necessary in order to elucidate the fact or question involved."
For authorities see Note 23 under Art. 760, Vernon's Texas C. C. P., Vol. 3, also Note 23 under Art. 667, Vernon's Texas *Page 485 C. C. P., Vol. 2, and same note in Cumulative Pocket Part of said Vol. 2.
Bill of exception number seven brings forward complaint with reference to the separation and misconduct of the jury and the officer in charge thereof, and certain evidence heard on motion for new trial is incorporated in such bill in narrative form. Information obtained from this bill is the only thing which is properly before the court. It does show that part of the jurors were permitted to go in stores and mingle with and trade with parties having charge of the store, while the other jurors remained outside the store with the officer having them in charge. He had no immediate control of the jurors who were in the store; neither he nor the jurors who were with him on the sidewalk could hear what was going on inside the store. The method of handling the jury raised a presumption of injury. The State should have called the officer in charge of the jury as well as all other parties who might have aided in discharging the burden of showing that no injury resulted. This was not done.
Bills of exception numbers fifteen and sixteen show that after the jury retired the sheriff came to the trial judge and requested him to send to the jury forms of verdict. This the court did, and the sheriff took them to the jury room and delivered them to some member of the jury. This was done without the knowledge of appellant or his attorneys. Such irregularity should not occur upon another trial.
The State's Motion for rehearing is overruled.
Overruled.