The appellant was tried in the District Court of Wichita County under an indictment charging him with murder. The jury trying the case found him guilty of murder in the second degree and assessed his punishment at twelve years in the penitentiary, and from the judgment and sentence in the case he prosecutes this appeal.
The question that presents itself at the threshold of the case is whether or not we can consider the statement of facts and bills of exception as a part of the record in this case. The record shows, that the court adjourned on July 2, 1894. The bills of exception appear to have been filed on June 25, 1894, and the statement of facts on July 2, 1894. The record shows that the following agreement was filed December 28, 1894, to wit: "The State of Texas Wichita County. We agree that the statement of facts and bills of exceptions in the case of The State v. Willie Spencer may be filed as of the term during which the same was tried." Said agreement was signed by counsel representing the State. The record shows an order, of date June 26th, allowing ten days after adjournment of the court within which to file a statement of facts in the case. Although the approval of the judge on the statement of facts and bills of exception is without any date, and the filing of same (both the exceptions and statement of facts) contains a date as of the term, yet to our minds the above agreement makes it evident that neither the statement of facts nor bills of exceptions had been filed prior to the 28th of December, 1894, and that they were purposely antedated, so as to appear to have been filed during the term. The law and the rules of this court require the bills *Page 246 of exceptions to be filed during the term, and the statement of facts can only be filed after the term when the court has made an express order allowing the ten days; and the method pursued in this case only shows an attempt to evade, by an agreement not authorized by law, a long-established rule of practice, the wisdom of which has been demonstrated by experience. Such a course of procedure can not be permitted by this court, and the bills of exception and statement of facts which appear in the record will not be considered by us.
The only question remaining for consideration in this case is that raised by the motion for a new trial in regard to the taking by the jury into the room of the clothes of the deceased, which had been introduced in evidence in the case. The motion was supplemented by the affidavit of one of the jurors and also of defendant's counsel, and showed, that on application of the jury, in the absence of defendant and his counsel, the clothing which had been introduced in evidence was authorized by the court to be sent to them. It is not shown that the clothing was used by the jury in any other manner than as warranted by the evidence, or that any new facts in connection therewith were discovered and discussed by the jury, and no prejudice is shown to have resulted to the defendant by the use of the clothing in the jury room. In McDonald v. The State, 15 Texas Criminal Appeals, 499, it appears that the jury were in the room where the homicide which they were trying occurred, and examined the bullet holes in the walls. Judge Wilson, in passing upon the question, said: "It is not made to appear, however, nor do we think that it was at all probable that such was the case, that the jury were in the least degree influenced in their verdict by these matters." So far as the Bouldin case, 8 Texas Criminal Appeals, 332, is concerned, which appears to contravene the decision in the McDonald case, the same has heretofore been overruled in Bell v. The State, 32 Texas Criminal Reports, 440. See also Powell v. The State, 61 Mississippi, 319. The motion for new trial showed, as before stated, that the clothing which was permitted by the court to be sent to the jury room had previously been introduced in evidence, and was used before the jury, in connection with the shot holes in the same, in the argument of the counsel; and although the defendant had full opportunity to show all the facts that occurred in the jury room in connection with the inspection and use of the clothing by them, it is not shown by the affidavit of any juror that said clothing was used by them in any different manner than accorded with the evidence adduced before them in connection with said clothing, nor is any new fact shown to have been discovered by them. In our opinion, the appellant must show affirmatively that he probably suffered some prejudice by the use of this testimony by the jury in the jury room, before he can be heard to complain; and none having been shown in this case, the judgment of the lower court is affirmed.
Affirmed.
Judges all present and concurring. *Page 247
ON MOTION FOR REHEARING.