Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of seven years; hence this appeal.
Appellant raised the question of the separation of the jury and presents a number of assignments on that subject. The record shows that, after the jury had been empaneled and were engaged in hearing the evidence, five of said jurors desired to leave the court room and go to the closet, which was situated in the court-house yard, for the purpose *Page 165 of answering a call of nature. They were permitted by the court to retire in charge of deputy sheriff. The other seven remained in the jury-box in the presence of the court and officers of the court. The five were absent some ten minutes. No objection was made by appellant or his counsel to the retirement of a part of the jury, leaving the others in the court room, until after they had retired, and then appellant's counsel took a bill of exceptions. The next bill shows that while the jury were engaged in trying the case, and after a part of the evidence had been introduced, four of said jurors desired to retire to the closet, and they were placed in charge of an officer and allowed to retire. The other eight remained in the court room, in the jury-box, in the presence of the court and officers of the court. These four were absent some ten minutes. No exception was taken to these jurors retiring until after they had retired. Whereupon appellant took a bill of exceptions. After this, a portion of the jury desired to retire from the courtroom to the closets in the yard, and were permitted to do so in charge of a deputy sheriff. The remainder of the jury remained in the jury-box in open court, in the presence of the court and the officers, until the others returned. Those retiring were gone fifteen or twenty minutes. All of said bills show that appellant did not consent to the retirement of a part of the jury as is shown above. The last bill does not show, in the court's explanation when the bill of exceptions was taken, whether before or after the retirement of the jury. Appellant invokes article 725 Code Crim. Proc., which says, "After the jury has been sworn and empaneled to try any case of felony, they shall not be permitted to separate, until they have returned a verdict, unless by permission of the court, with the consent of the attorneys representing the State and the defendant, and in charge of an officer." He insists that every portion of said article has equal obligation upon the court, and that in the absence of the consent of the defendant, or his attorney, it was not competent for the court to permit a part of the jury to retire, even though in custody of a deputy sheriff. In support of his contention, he cites a number of authorities. Among them Defriend v. State, 22 Texas Crim. App., 570; Boyett v. State, 26 Texas Crim. App., 689; McCampbell v. State, 37 Texas Crim. Rep. App., 607; Darter v. State, 44 S.W. Rep., 850. In none of the cases cited, was the exact question here presented before the court. We apprehend, that the object of the statute was to prevent the possibility of the jury or any portion thereof being tampered with. A number of cases hold, that if an opportunity is presented, so that the jury, or any portion of them, might be approached or tampered with, the verdict will be set aside, without reference to any injury shown. Here it appears that the jurors retiring, as well as those remaining in the court-room, were under the continuous surveillance of officers, and it is shown that any opportunity was afforded to any outsider to approach or speak with any member of the jury. While we do not believe under such circumstances that the consent of the attorney for the State or the defendant was necessary, in order to *Page 166 permit what was done (this not being such separation as is contemplated under said statute. Walker v. State, 51 S.W. Rep., 234) yet, we believe the better practice would have been for the court to request such consent; especially, after the first bill of exceptions had been taken to a portion of the jury retiring.
There is another bill of exceptions to the action of the juror, Walter Nance. It appears from the bill, that while the trial was in progress, the court ordered some benches brought into the court-room from the room just behind the jury-box. The sheriff and others went in said room for the purpose; and Nance, one of the jurors who was sitting next to the door leading into said room, stepped in the room and assisted in bringing out one bench, but was not out of sight of the court in that room for five seconds, immediately returning, bringing the bench. It does not occur to us that this was a separation of the juror. It might be said that he was in the presence of the court. Certainly to go into a room to help the sheriff and others bring in the bench, and absent not more than five seconds, could not be considered such a separation as the law will notice.
In motion for new trial, appellant complains of the misconduct of the jury after they had retired to their room, and had the case under advisement; that the deputy sheriff retired from the room where the jurors were sleeping at night with two of the jurors, and these remained separate and apart from the other portion of the jury, who were left in the court-room, for a considerable space of time. The proof on this point shows that the two jurors were taken by the deputy sheriff to the closet to answer a call of nature; that on their request the deputy sheriff went with them to an ice-cream parlor and together they partook of ice-cream, and then returned to the jury-room, being absent some half an hour. In the meantime the other members of the jury remained in the court-room in charge of the sheriff. It is further shown, that these absent jurors in charge of the deputy sheriff did not talk with any one during their absence. It occurs to us, that the same principle heretofore announced in reference to the other bills of exception, is applicable to this bill. There was in effect no such separation as would authorize a reversal. All the while the jurors were in custody of an officer. See Walker v. State, 51 S.W. Rep., 234.
Appellant further insists that others were permitted to mix with the jury at night during their retirement. The facts show that two persons, to wit: J.J. Harris and J.M. McGee, who were on the jury for the week, but not on the jury trying the case, were permitted by the court to sleep in the court-room, where the jury was also kept during the night. An examination of the evidence on this subject shows that the two jurors occupied the middle aisle of the court-room, and were kept separate from the jury trying the case. We do not deem this reversible error, as neither of said jurors are shown to have spoken to members of the jury, but they were kept away from and aloof from the jury. Of course, we do not by any means commend this loose practice *Page 167 with regard to the custody of a jury trying a felony case. The object of the law is to keep them together and to keep others away from them. Doubtless in many of our counties where accommodations and conveniences for taking care of the jury are meager during a protracted trial, it may often be difficult to keep the jury at all times together. This case is illustrative of this. Here some of the jury desired to answer calls of nature, when others did not. While strictly the letter of the law might require that all go together on such occasions, yet we can see no possible harm where some remain in the courthouse under the immediate supervision of the court and officers, and others go out on such occasions, accompanied by an officer under the direction of the court. In such cases, in the absence of some opportunity shown by which the jury, or members thereof, might have been approached and tampered therewith, we would not feel authorized to set aside a verdict.
Appellant complains of certain remarks of the prosecuting attorney, during the closing argument of the case. Among other things he complains that said attorney, during his argument, walked up within a few feet of defendant, and shaking his finger in his face, said: "You, John Jones, defendant here on trial, know that you have locked up in the deep recesses of your heart facts if you would divulge would convict you and hang you in this case. You know it. You know they are there, and why didn't you tell it to the jury? Because you know it would hang you." These remarks were objected to because they were outside the record, and calculated to prejudice appellant. The court explains this by stating, that when appellant was on the stand as a witness, when the State undertook to cross-examine him, he refused to tell where he got the gun with which he killed deceased; and the remarks were made with reference to that matter. Besides no written or oral application was made by appellant to instruct the jury to disregard said remarks. We think this explanation disposes of said bill of exceptions. The same observation may be made with reference to other bills of exception taken to the language of the district attorney in his closing argument.
Appellant offered the following testimony, by the witness P.M. Bowie, to wit: That the defendant John Jones on the morning before the killing at noon, told Mr. Bowie (owner of the plantation and store where the homicide occurred and where defendant resided) that he had heard Hamilton Jones was looking for him with a gun, and had been told by two or three parties that they heard Hamilton Jones say he was going to kill him, and asked Mr. Bowie what he must do about it. Mr. Bowie told him, `I don't know, John, if he is after you with a gun, you will have to protect yourself, that is the best I can tell you." Defendant offered to prove said facts by himself and by the witness P.M. Bowie. But the State objected to the admission of said proposed testimony on the ground that it was self-serving — not part of the res gestæ; and the court sustained said objections, excluding said testimony. The *Page 168 object and purpose of the introduction of said testimony is not disclosed in the bill. What particular light it would shed upon the homicide we are therefore not informed; and it occurs to us, as it did to the court below, that the declarations and conversation between Bowie and defendant anterior to the homicide, constituted no part of the res gestæ and were self-serving in their nature. The court did not err in excluding the same.
By another bill of exceptions it is shown that, in the argument to the jury, the attorney for the State commented upon the failure by the defendant to establish by Bowie (owner of the plantation where the homicide occurred), the custom of said plantation as to the carrying of fire-arms thereon, the court having sustained objections to the introduction of such testimony. What the custom was we are not informed by the bill, nor is there any bill taken to the exclusion of any testimony referred to in the bill under discussion. So we are unable to say what the comments were, not knowing what the custom was. Moreover no request was made to instruct the jury to disregard such argument.
Appellant criticises the court's charge on self-defense. We have examined the same, and think it properly presents that issue. Nor did the court err in refusing to give appellant's special requested instructions.
We have examined the record carefully, and in our opinion it contains no error authorizing a reversal. The judgment is affirmed.
Affirmed.