My associates are reversing this case for alleged misconduct of the jury, that is, because it was claimed that the jurymen were conversing with, or being conversed with by, an outsider. I emphatically dissent, and assert:
First, that all that was said by or to any juror was in testimony before the trial court when he passed on the motion for new trial.
Second, that the testimony heard entirely refuted and overcome any idea that the case was referred to or discussed.
Third, that it showed but the innocent act of an old man coming down the street to where a group of other men were, to whom he spoke, saying "Good morning," and making some remark about the weather.
Fourth, that not a single juror said a word to him.
Fifth, that when told by the officer in charge that this was a jury, the old man apologized, and that this ended the episode.
Sixth, that in holding this not a sufficient showing to call for the granting of a new trial under subdivisions 7 and 8 of article 753, C. C. P., the trial court acted correctly, and within his discretion.
The record on the point involved is short and undisputed. Appellant introduced one juror Kyle on the hearing of the motion for new trial, who swore that, while the jury were in front of a cafe, juror Everett called his attention to an old like gentleman talking to Mr. Farmer (another juror). Kyle testified: "He talked to Mr. Farmer, and then went across on the other side and talked to Mr. Harris (another juror). I couldn't hear what was said." Cross-examined Kyle testified: "I said that over on the north side of the American Cafe there was some one SPEAKING to one or two of the jurors, but I don't know who the person was or anything he said." This was all the testimony offered by appellant in support of his claimed conversation. I take it that the juror spoke the absolute truth in what he said in his cross-examination, and that his use of the word "talked" in his direct testimony was but a careless statement of what occurred.
In rebuttal the state called juror Farmer, who pointedly swore that he did not discuss this case with any person near the American Cafe while the case was on trial. Cross-examined by appellant, he testified that, when the jury came out of the cafe, Judge Fulton, an elderly man, came along and saluted, *Page 304 and said, "Good morning," and made some remark about the weather; that witness was the closest juror to Fulton, but he made no reply or answer to Fulton, and passed on without saying anything to him. Juror Harris was near witness Farmer, but Farmer did not know who Fulton was saluting, or whether he greeted Harris or not. The state introduced juror Harris, who testified that no one during said trial spoke of the case to him. Cross-examined, he testified that, after eating breakfast at the American Cafe, the deputy sheriff went to the door and stood until the jurors got out. Harris said when he walked out he stepped aside and was looking in a window, and Mr. Fulton came along and started to speak to him, and Deputy Sheriff Smith stopped him. When Mr. Smith told Mr. Fulton these men were the jury, Fulton apologized, and the jury went on to the courthouse.
Article 671, C. C. P., directs that no person shall be permitted to converse with a juror after he has been impaneled, except in certain instances, and that no person shall be permitted to converse with a juror about the case on trial. This article was part of the old Code, as was a later article, 753, C. C. P., which deals directly and specifically with new trials, and starts out with this declaration: "New trials, in cases of felony, shall be granted for the following causes, and for no other." Subdivisions 7 and 8 of said article are as follows:
"7. Where the jury, after having retired to deliberate upon a case, have received other testimony; or where a juror has conversed with any person in regard to the case. * * *
"8. Where, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial. It shall be competent to prove such misconduct by the voluntary affidavit of a juror; and the verdict may, in like manner be sustained by such affidavit."
The same authors having written article 671, supra, and article 753, supra, it must be at once apparent that they intended to bring forward into said subdivision 7 so much of article 671 as would and should be ground for new trial in a felony case, viz: "Where a juror has conversed with any person in regard to the case," and that in any given case the determination of an issue made as to whether any person talked to a juror, or was talked to by a juror — when relied on as ground for new trial — must be governed by the rules laid down in subdivision 8 of said article.
In said subdivision 8 the Legislature plainly say that misconduct *Page 305 by a jury may be proven by the voluntary affidavit of a juror, and that the verdict may be sustained in like manner. Evidently responding to this, appellant sought to prove misconduct by the testimony alone of juror Kyle. Having based his case on the testimony of one juror alone, and said juror having testified that all he saw take place was that an old man spoke to jurors Farmer and Harris, it was not only competent but sufficient for the state to introduce those two gentlemen, who each testified that he said nothing, and that old Judge Fulton, not knowing that he was speaking to jurors, said, "Good morning," and spoke of the weather, and that this was all that took place. It was not claimed or proven that any one conversed with the jurors about the case. Nor, in the opinion of the writer, was it shown that an outsider "conversed with any juror." It was not even claimed that any juror conversed with an outsider. Nor do I find room for questioning the truthfulness of the statements of jurors Farmer and Harris. They were guilty of no misconduct. They neither spoke to Fulton, nor stood and listened to him, nor consented that he should say "Good morning" to the group.
To the writer it seems beyond comprehension that on any such facts as these a reversal of a felony case should be ordered because the state did not call Fulton or Deputy Sheriff Smith. Appellant has the laboring oar to show misconduct of the jury. Absolutely the only testimony produced by him was that of a juror who went no further than to say that he saw some one speaking to one or two of the jurors. This he said was on a public street, where the whole jury was, and in the presence and supposedly the hearing of an officer. I find it impossible to believe that men become unworthy of belief to whom is imputed no violation of any statute merely because they were on a jury. Their own district judge believed them, and I think him well within his discretion. These jurors were not attempting to explain any misconduct of theirs, but wholly denying misconduct and stating facts according exactly with the testimony of the juror offered by appellant as making out his case of misconduct.
If there be any decision in this state holding that under such facts this case should be reversed, it should be promptly overruled, for there could be no more dangerous ruling made than the one here indicated. Probably not a jury walks down a city street to its meals that some one, ignorant of its character, does not speak to or greet some member. Many cases are found in our books such as appears in Murphy v. State, *Page 306 40 S.W. 978, where a stranger rode past a jury out for a walk and called out and said, "Boys don't give him more than ten years." This was testified to without dispute, and it was held not reversible error. Certainly, if it be laid down that merely speaking to a juror on a street will be held reversible error, designing criminals and their friends can and will lay easy predicates for such reversals; and this would be made certain by laying down rules that, even though the juryman spoken to affirm under oath that he did not speak in reply, still this court should hold that, because the man who spoke was not produced, or the officer in charge of the jury was not brought, the case should be reversed.
We may have gotten far from the early holdings, but this seems to be beyond reason. The rule laid down in the early days was that, when the conversation was not shown to be about the case, it would have to be shown that probable injustice had been done. March v. State, 44 Tex. 64; Pickens v. State,31 Tex. Crim. 554; Shaw v. State, 32 Tex.Crim. Rep.; Nance v. State, 21 Texas App., 457; Kelly v. State, 28 Texas App., 121; Testard v. State, 26 Texas App., 273; Bailey v. State, 26 Texas App., 706. In the early case of Johnson v. State, 27 Tex. 758, there appears a case so like the one at bar that we quote:
"Article 672, of the Code of Criminal Procedure, expressly forbids the granting of new trials in cases of felony, except for some one of the causes enumerated in said article. There are but two of these which could be tortured into the slightest application to the grounds relied upon to support this motion. 1st. Where a juror has conversed with any one during the progress of the case. In one of the affidavits before the court, it is stated that one of the jurors and the affiant spoke together of the case during the trial. The juror, however, swears that, when approached by the affiant, he informed him that he was upon the jury and could not talk to him. And the truth of this statement is subsequently admitted by the affiant. The juror, then, did not converse about the case, but, on the contrary, refused to do so."
In Testard v. State, supra, Judge Willson said:
"It is well settled that misconduct of a jury is not ground for a new trial unless it is shown to have been such as affected the fairness and impartiality of the trial. (Jack v. State, 20 Texas App., 656; Allen v. State, 17 Texas App., 637; McDonald v. State, 15 Texas App., 493.) No such misconduct on the part of the jury in this case has been made to appear." *Page 307
In Shaw v. State, supra, Judge Davidson said:
"Remarks to or conversations with jurors do not necessarily constitute ground for granting a new trial. In order to entitle a party to a new trial under such circumstances, it must be made to appear that, by reason of such conversation, injustice was probably done him. It must be such as was calculated to produce a more unfavorable impression upon the mind of the juror than that made by the evidence adduced on the trial, or it must be of such a nature as was calculated to result in probable harm to the accused, in order to constitute a ground for a new trial, or, in case of its refusal, to authorize a reversal on appeal. Nance v. State, 21 Texas App., 457; Bailey v. State, 26 Texas App., 706; March v. State, 44 Tex. 64."
This case is referred to with approval in Douglas v. State, 58 Tex.Crim. Rep., opinion by Judge Ramsey, in which the only testimony produced was from jurors.
In Early v. State, 51 Tex.Crim. Rep., cited in the majority opinion, a separation of the jury was clearly shown; as was also the fact that, while separated, the jurors talked to many persons, none of whom were brought to testify, nor were all the jurors produced. On the facts of that case this court held that whether the rule of presumptive injury be followed, or the milder one, that the burden was on the state to show what the conversations admittedly had were about, the result would be the same, and a reversal must be ordered. It was further held that it would be a bad precedent to hold that jurors, out of the presence of the court without court permission, might converse with other parties over the phone, and that certainly where such conduct occurs it should be held obligatory on the state to show beyond any question that the jurors were not tampered with. In Mauney v. State,85 Tex. Crim. 192, the writer of this opinion held that in such case injury should be presumed until the contrary be made to appear to the satisfaction of the court; the trial court primarily, and ultimately this court, but it is further stated that any presumption can be overcome by proof, and that the extent of the burden upon the state in such case extends no further than to satisfy the court that no injury has resulted. This burden was fully met and discharged in the instant case. The assault upon the verdict was made by the testimony of only one juror, and the state brought forward two jurors, named by the juror who made the accusation that he saw an old man speaking to certain jurors and they testified that they were the *Page 308 nearest jurors to said old man, but did not speak to him, and all that he said was "Good morning," and make some remark about the weather.
Every right of a man on trial ought to be accorded him, but to reverse a case and incur the delay and expense of another trial for no more substantial reason than here appears, seems to the writer going entirely too far and sets a premium on the failure of the appellant to sustain his point by punishing the state for not sustaining it for him.
Newman v. State, 91 Tex.Crim. Rep., is cited with reliance in the majority opinion. In that case it was shown without dispute that the jury went to the post office and got from the mail packages and communications whose contents were not disclosed on the hearing of the motion for new trial. Judge Morrow held the presumption of injury not to have been rebutted. The logical reasoning in this regard is in line with our uniform holdings. His statement as to the content of subdivision 7 of article 753, supra, is not entirely in accord with what is in fact there said and made imperative by the commands of said article, which does command that a new trial be granted if a juror has conversed about the case.
The case of Toussaint v. State, 92 Tex.Crim. Rep., is also cited with reliance in the majority opinion. From Judge Morrow's enumeration in the opinion in that case of what was done by the jury, both with and without the consent of the officer in charge, it was beyond dispute that the presumption of injury was in nowise overcome. He said: "The testimony upon the hearing of the motion for new trial reveals a series of acts upon the part of the jurors, some of them with the consent of the officer in charge, which were violative of the statute enacted to preserve the purity of the jury. * * * It too often happens, as in this case, that after the trial it is made to appear that the members of the jury have disregarded the statutes and disobeyed the directions given by the court. Whensuch things occur, and were not shown to have been harmless, the courts cannot sanction the verdict without themselves doing violence to the mandatory provisions of the law." With what was said in that case, on the facts of that case, this writer was in hearty accord. However, how different the facts here! Note the statement in the quotation from the Toussaint case, appearing in the majority opinion: "It having been conclusivelyshown that the statutes were violated," etc., etc. It not only was not shown conclusively in the instant case that the statutes were violated, but it was shown to the evident satisfaction of *Page 309 the trial judge, who knew the witnesses, that they had not violated any statute.
No case can be found in any book holding it a violation of statutes forbidding conversations with a jury for one to walk by a group of men on an open street in the daytime and say, "Good morning — nice weather," and upon being informed by the officer in charge that these were a jury, apologize and pass on, and consequently reversible error. In the case before us no juror conversed with any person. No outsider conversed with any juror. A mere salutation is not such conversation as is contemplated by the statute.
Expressions used in cases where there have been admitted or proven violations of the statutes, are rightly applicable only in cases on facts like those then under consideration, and should not be used to justify a holding here that the trial court exceeded his discretion in concluding that the testimony of Farmer and Harris showed that no prejudice could possibly have resulted, and that they had violated no statute. Certainly to so hold would wrongfully bring these men in the category of those who might be tempted to falsify in order to exonerate themselves when guilty of wrongdoing, and would reflect on their testimony, and upon the trial court who accepted it as true, when the only reason for such reflection would rest upon the fact that the nearest jurors to the old man who came by were the only ones called to testify. I think this fundamentally wrong, and that in cases on facts like these there should be no hesitation on our part to accept as correct the judgment of the trial court who knew the witnesses and was in position vastly better than ours to pass on their testimony.
The facts in Hamilton v. State, 83 Tex.Crim. Rep., discussed in the majority opinion, were very like those here, as appears from an inspection of the original record found in our files. An elderly man intruded himself upon a group, not knowing them to be a jury, just as Fulton did here, made a few remarks of a wholly harmless nature, and, upon learning that he was talking to a jury, he excused himself and left, but came back and further apologized. He was used as a witness, but, if there be anything in the principle of rejecting the testimony of those who have themselves done wrong in the matter under investigation, neither his testimony, nor that of Fulton in the instant case, should have been taken as a basis for the finding of the trial court. The facts in the Hamilton case show much more transgression of the rules than appears in the instant case. The jury in that case were taken to a supper, and *Page 310 one of their number was shown to have talked to another party who was not used as a witness, but the juror testified that nothing was said about the case. A woman who waited on the table of the jurors testified that she talked with them, but not about the case, but the conclusion of the trial judge that no harm resulted was upheld by us.
In Patterson v. State, 106 Tex.Crim. Rep., cited in our original opinion, and discussed in the majority opinion, we have an exactly similar case on principle as the one here. In the Patterson case a juror spoke to an outsider, who made no reply. In the case at bar an outsider spoke to a juror who made no reply. In the Patterson case we accepted the statement of the outsider, who had been guilty of no wrong, and said in our opinion: "This is not 'Conversing with a juror,' which is forbidden in article 671, Code of Cr. Proc., 1925. Unless and until misconduct is shown by the testimony, no burden is imposed upon the state which it must rebut." In the case at bar the trial court accepted the testimony of two good men who had done no wrong, who said that an innocent old man who did not know they were jurors spoke to them, but they made no reply, and he apologized, and that ended the episode. I wrote in the Patterson and here take occasion to repeat what I there said as applicable: "This is not 'conversing with a juror,' which is forbidden in article 671, Code Cr. Proc., 1925," and it certainly is no transgression of article 753 which authorizes a new trial on such ground only when the conversation is about the case. I see nothing in the discussion of the Newton case, 114 Tex.Crim. Rep., justifying its characterization as in any sense presenting an unusual situation, and therefore presumably justifying a stretch of the rules under discussion here. In that case an outsider brought refreshments to the jury room. The only conversation had was testified to by a juror and appeared to be wholly harmless. I think the correct legal and common sense conclusion was reached in the Newton case.
It might be interesting to note the growth and gradual departure from the original holding in regard to the necessity for introducing the testimony of outsiders in cases where jurors have been unquestionably guilty of a violation of the rules forbidding separation, receiving other testimony, discussing the failure of the accused to testify, conversing with outsiders, etc., etc. I do not believe any case will be found in the books showing clearly that the jurors themselves were without guilt in the matter under investigation, which would lay down the rule *Page 311 that their testimony should not be accepted as sufficient by the trial court, and that, whenever it is shown that some outsider spoke to the jury, none of whom replied, a reversal will be ordered because the outsider was not produced.
Believing that a dangerous precedent is being established with whose soundness I can not agree, I respectfully record my dissent.