This appeal is from a conviction for the offense of murder with punishment assessed at nineteen years confinement in the State penitentiary.
That appellant killed the deceased was a conceded fact, and his excuse was self-defense. This issue as well as manslaughter and provoking the difficulty were submitted to the jury.
Appellant's wife was an eyewitness and testified to facts tending to show that the deceased was the aggressor, or at least at the time of the homicide the deceased was attacking appellant with a knife with *Page 180 the declaration that he intended to kill him. On cross-examination it appeared that the appellant's wife had remained in Lindale, where the homicide took place, some little time, about a half hour, after the homicide and then started for her home, four miles distant, and traveled in a wagon with her son, and while so traveling she met Isom Vickery and his wife traveling toward Lindale. The State's counsel asked her if on this occasion when her wagon was passing the vehicle in which Isom Vickery was traveling the latter didn't say to her: "Who killed him?" and if she did not reply, saying: "Ira killed your papa because he sued him. I tried to keep him from it, but I couldn't do it." Objection was made to this testimony on the ground that it was not proper cross-examination of the wife, not germane to the direct examination and called for an opinion of the witness. The objection was overruled, and Mrs. McDougal having denied the conversation, the State's counsel proved by Isom Vickery and by Mrs. Isom Vickery that the conversation named did occur. This was objected to as hearsay and as undertaking to prove an opinion and conclusion, and as being an inquiry not germane to the direct examination, which objections were overruled, and exception duly reserved.
We do not think that this expression comes within the rule stated in those cases in which it has been held that expressions constituting a shorthand rendition of the facts are admissible though they bear the appearance of a mere opinion. These cases are cited in Branch's Ann. P.C., p. 1036, but they all recognize the law to be that where the statement is a mere opinion, even though in a dying declaration, it can not be admitted in evidence. This is illustrated in Manley v. State, 62 Tex. Crim. 392. The dying declaration in that case contained the following: "I was stabbed by one of the soldiers at the fair grounds today, and without any word or act of mine that could be regarded as hostile or a provocation." The court held that the words "that could be regarded as hostile or a provocation" were the opinion or conclusion of the dying man and inadmissible. In Sorrell v. State, 74 Tex.Crim. Rep., 169 S.W. Rep., 299, the dying declaration contained the words, "He was shot down like John Ross." This was declared objectionable because an opinion. The same principle was adhered to in Drake v. State,65 Tex. Crim. 282, 143 S.W. Rep., 1157, where the quotation from the dying declaration was that a coward shot him. In Bateson v. State, 46 Tex.Crim. Rep., the dying declaration contained the words: "They murdered me without cause." This court held that this statement should have been excluded. The rule is stated in Medina v. State, 63 S.W. Rep., 332, as follows: "A dying declaration is admissible to show all the facts immediately connected with the homicide to which a witness, were he present, could testify. This would exclude narratives of past transactions and opinions or mere conclusions by declarant," citing Roberts v. State, 5 Texas Crim. App., 141; Warren v. State, 9 Texas Crim. App., 619; 1 Greenl. Ev., sec. 159; Boyle v. State, 5 N.E. Rep., 203; People v. Abbott, 4 Pac. Rep., 769. *Page 181 In Williams v. State, 40 Tex.Crim. Rep., the dying declaration said: "When they came in my office I treated them perfectly gentlemanly. They added insult after insult." The admission of this was held error.
The fact that where the defendant uses his wife as a witness the State may conduct a cross-examination germane to the direct examination is not in question. That is settled by the decisions of this State. Branch's Ann. P.C., sec. 152, p. 86. From the same author, page 87, we quote the limitation or qualification upon this rule:
"It is error to permit the State to go into new matter on cross-examination of the wife of defendant either for the purpose of impeachment or to draw out circumstances or statements adverse to defendant. Cross-examination is not a device by which the State is entitled to lay predicates as to matters about which the wife of defendant could not be cross-examined or contradicted, or to get before the jury her opinions of defendant's guilt, or her apprehensions of danger, or her hearsay statements as to new matter. (Citing cases.)
"If the State goes into new matter on cross-examination, the witness becomes, for the time being, a State witness. The State is not entitled on cross-examination of the wife of the defendant to go into new matter, and thereby make the wife of defendant a witness for the State against her husband. The wife of the defendant may be cross-examined by the State only as to such matters as naturally spring out of and appertain to her testimony given on her direct examination." (Citing cases.)
The subject here emphasized is, that the opinion as to the guilt or innocence of a defendant on trial or to the cause of the homicide is not admissible in evidence. In Marsh v. State,54 Tex. Crim. 144, the wife of the appellant while on the stand as a witness for him was, on cross-examination, asked by the prosecution if she had not said to Will Brown on an occasion named that it was nothing in the world that caused the trouble except a foolish remark of Kathleen Adams. Upon her denying this statement, Will Brown was put upon the stand for the State and testified that she made it. His testimony was limited in the court's charge to impeaching purposes. Judge Ramsey, delivering the unanimous opinion of the court, held this proceeding error. We quote from him, as follows: "It formed no part of the transaction or the conversation or matter inquired of from Mrs. Marsh on her original examination. It wholly related to another transaction subsequent to the killing, and was not receivable either for the purpose of impeachment or as a circumstance adverse to appellant. Again, we think the testimony was objectionable in that it called for the opinion of the witness as to the killing. For full discussion of this matter, see Richards v. State, 53 Tex.Crim. Rep., 110 S.W. Rep., 432; Jones v. State, 38 Tex.Crim. Rep., 40 S.W. Rep., 807, 41 S.W. Rep., 638, 70 Am. St. Rep., 719; Messer v. State, 43 Tex. Crim. 97, 63 S.W. Rep., 643; Washington v. State, 17 Texas Crim. *Page 182 App., 197; Hoover v. State, 35 Tex.Crim. Rep., 33 S.W. Rep., 337; Gaines v. State, 38 Tex.Crim. Rep., 42 S.W. Rep., 385; Creamer v. State, 34 Tex. 173; Greenwood v. State,35 Tex. 587; Merritt v. State, 39 Tex. Crim. 70, 45 S.W. Rep, 21; Johnson v. State, 28 Texas Crim. App., 17, 11 S.W. Rep., 667; Hamilton v. State, 36 Tex. Crim. 372, 37 S.W. Rep., 431; Owen v. State, 7 Texas Crim. App., 329; Red v. State, 39 Tex.Crim. Rep.; Bluman v. State, 33 Tex.Crim. Rep., 21 S.W. Rep., 1027." In Taylor v. State, 74 Tex.Crim. Rep., 167 S.W. Rep., 56, the majority of the court expressed the opinion that Marsh v. State, supra, was not sound and that it should be overruled so far as it was in conflict with Taylor v. State, supra, and the decisions there cited. The decisions cited are those which establish the rule that a wife may be cross-examined on matters brought out on her direct examination. In Taylor v. State it was not contended that the testimony of the wife constituted her opinion, but the difference between the majority of this court in writing that opinion and Judge Ramsey in writing the opinion in the Marsh case, supra, involved the extent to which cross-examination of the wife might go. In substance, as we understand it, the correctness of the rule as quoted from Branch's Ann. P.C. above was not involved, but its application only. We, therefore, assume that that part of Marsh v. State in which Judge Ramsey holds that the wife's opinion as to the cause of the homicide is not admissible, is not in conflict either with Taylor v. State or the authorities therein cited. In Drake v. State, 29 Texas Crim. App., 265, this court in an opinion by Judge Willson, on rehearing, disposed of substantially the same character of testimony in the following language: "It did not involve facts in evidence but merely the conclusion of the witness. It was not the statement of a fact but of a conclusion — a mere opinion or belief of the witness. It was, therefore, a statement collateral to the issue as we understand the authorities upon this subject. In addition to the citations of authorities in our former opinion bearing upon this question, we refer to Wharton's Criminal Evidence, section 482; 1 Wharton on Evidence, section 551, and 1 Greenleaf's Evidence, section 449. As to the second proposition, we held and still hold that the statement inquired about involved the opinion merely of the witness. A statement of opinion merely can not be used to impeach a witness, except when opinion is an issue or where the opinion stated goes to show bias of the witness. Whart. Crim. Ev., sec. 482; 1 Greenl. Ev., sec. 449; Holmes v. Barber, 18 Barb., 420." In Watson v. State, 50 Tex. Crim. 171, 95 S.W. Rep., 115, a witness who had testified to facts showing self-defense was impeached by showing that he had stated that defendant shot deceased for nothing. This was held error on the ground that it was proving the opinion of the witness. In Woodward v. State, 50 Tex.Crim. Rep., 95 S.W. Rep., 502, the same principle is adhered to. Likewise in Hobbs v. State, 53 Tex.Crim. Rep., 112 S.W. Rep., 308. *Page 183
The cases cited by the Assistant Attorney General are not in conflict with the case of Marsh v. State, supra, in so far as it declares the opinion of the witness inadmissible and declares the statement quoted in that case to have been an opinion. The statement imputed to Mrs. McDougal to the effect that her husband killed deceased "because he sued him," does not purport to relate any fact but only a conclusion supposed to have been drawn by her from the facts obtained by her from an undisclosed source. It touched a vital issue: the cause of the homicide. That appellant killed the deceased was not in question; the reason for it was the subject of the trial. The evidence complained of should have been excluded.
Appellant asserts that there was error in the refusal of the trial court to grant a new trial on the ground that the jury after its retirement discussed and used against him the fact that he had previously been convicted in this case and his punishment assessed at twenty years confinement in the penitentiary. It appears that in developing the case reference was made to the fact that the defendant had been previously tried, but there was no reference or evidence showing how it resulted. On the first night that the jury were out they were of the opinion that appellant was guilty of some degree of homicide, and they balloted a number of times upon the amount of his punishment. Their views varied, some insisting that the offense was manslaughter and the punishment should be two years; others insisted upon five and others upon ten years and others for various numbers of years going up to ninety-nine. They reached that night a stage in which ten voted for fifteen years as the punishment and two against it. There is evidence that one of the men who was for the highest punishment began the discussion or statements relating to the former conviction. One of the jurors testified as follows: "Just before the ten and fifteen-year men agreed on nineteen years it seemed that we had come to a halt, when the other two would not come to them, and we quit, and several went into another room and went to sleep, and a little after 3 o'clock one of the jurors roused up the balance and wanted an agreement." As its terms he replied: "Well, in the former trial the jury gave McDougal twenty years, and I think that the anguish that he has undergone for the past year, we will just disregard that year and give him nineteen years." The juror testifying said that he told him he didn't think they had a right to consider the former sentence but finally told him that they would get the men together, and they did get the other eight, including himself, and arrived at a verdict of nineteen years. The jurors generally stated that they were not influenced by the fact brought to their knowledge of the prior conviction or the discussion of it.
Article 837, C.C.P., prescribes that "new trials in cases of felony shall be granted where the jury, after having retired to deliberate upon a case have received other testimony."
In Mitchell v. State, 36 Tex.Crim. Rep., Hurt, Presiding *Page 184 Judge, delivering the opinion of this court, construing this statute, says: "It would appear from this that if the jury received other testimony after having retired to deliberate upon a case, a new trial is mandatory. Certainly it would be so where the testimony is of a material character, and it makes no difference whether the jury received this testimony from one of their number or from others."
In Lankster v. State, 43 Tex.Crim. Rep., Henderson, Judge, delivering the opinion of this court reversing the judgment assessing the penalty at seven years confinement in the penitentiary because during their deliberations one of the jurors mentioned in the presence of his fellows the fact that appellant had been previously convicted in the same case and his punishment fixed at twenty-five years in the penitentiary on one trial and fifteen years on another, said:
"The question thus presents itself: Was this such misconduct on the part of the jury as to require a reversal of this case? We are aware there are some cases wherein we have stated that the mere allusion to the failure of defendant to testify is not a ground for reversal. But in those cases it will be found that State's counsel was provoked in what he stated by remarks of defendant's counsel. Campbell v. State, 35 Tex.Crim. Rep.; Brantley v. State, 42 Tex.Crim. Rep.. In Morrison v. State, 39 Tex.Crim. Rep., which has been referred to, we do not understand that any question as to the misconduct of the jury was before the court. The case was reversed on other grounds, and it was held in that case that the affidavit seeking to impeach the verdict of the jury for misconduct was too general. . . . The former convictions were alluded to and discussed. Obviously, as men generally act from motive, this matter was discussed by someone for a purpose; and the suggestion that former juries had not only found appellant guilty, but had fixed a heavy punishment to his offense, would have more or less moral weight with the jury. It was calculated to strengthen the weak-kneed, and to increase the ardor of those who were already in favor of the greatest number of years. But we do not believe, in a matter of this sort, we are authorized to speculate as to possible injury that may have accrued to appellant. The jury were guilty of misconduct in referring to the former convictions, and the bare fact that this misconduct was of a character calculated to injuriously affect him is enough."
In Tutt v. State, 49 Tex.Crim. Rep., 91 S.W. Rep., 584; Morawitz v. State, 49 Tex.Crim. Rep., 91 S.W. Rep., 227; Hardeman v. State, 53 S.W. Rep., 121; Horne v. State,50 Tex. Crim. 404; Clements v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 1137, and Blocker v. State, 61 S.W. Rep., 391, there were reversals because the jury after retirement and before verdict had received from one of their number knowledge of the prior conviction of the defendant or his codefendant, each of them holding that such knowledge was receiving evidence within the terms of the statute and that harmful evidence was received, rendering it imperative that a new trial be *Page 185 granted unless the absence of injury was shown. In most of these cases the punishment assessed upon the previous trial was greater than that in the case passed upon, and in all of them there was testimony by the jurors to the effect that they were not influenced by the knowledge thus received.
Touching this character of testimony, we quote from the cases of Lankster v. State, supra, and Mitchell v. State, supra, as follows: "The jury say that this discussion in nowise influenced them in arriving at their verdict. The affidavits of jurors who are guilty of misconduct to the effect that they were not prejudiced by what they did is of little weight. As was said in Mitchell v. State, 36 Tex.Crim. Rep.: `Such an affidavit is to be expected from jurors seeking to justify themselves for their own misconduct, and to escape a responsibility imposed upon them by their oaths, which an admission that they were otherwise influenced would entail.'"
There are cases passing upon article 837, subdivision 7, holding that a mere incidental mention of the former conviction will not necessarily result in reversal. Among them are Bain v. State, 43 Tex.Crim. Rep., where the complaint relating to a reference by the State's attorney to the former conviction, the court held there was no such reference; Salazar v. State,55 Tex. Crim. 307, where there was no discussion of the former conviction but a bare mention of it only; Coffman v. State, 73 Tex.Crim. Rep., where a witness during the trial volunteered a statement of the previous conviction and the court promptly reprimanded the witness and withdrew the matter from the jury, and where it appeared that there was no discussion of the previous conviction by the jury and it further appeared that the jury knew of it in advance; Smith v. State, 52 Tex. Crim. 344, in which there was casual, incidental allusion to the former conviction but no use of it, the court stating the true rule to be "that a verdict ought not to be set aside for every incidental and casual mention of a former conviction, unless the court may fairly and reasonably see in the light of all the circumstances that such reference or discussion did or might have prejudicedappellant's case." Arnwine v. State, 54 Tex.Crim. Rep., was one in which the jury knew of the prior conviction before it was mentioned in the jury room. It was discussed, however, and there was a dissenting opinion holding that a reversal was required, and with this opinion we agree. An examination of each of the cases in which there has been an affirmance will disclose facts different from those involved in the present case. In each of them, except Arnwine v. State, supra, the evidence demonstrated an absence of the injury.
The statute has also been given a mandatory effect in its application to the receipt of harmful testimony other than that of prior conviction. Thus, in McWilliams v. State, 32 Tex. Crim. 269, Hurt, Presiding Judge, writing the opinion reversing for the receipt of such testimony, says: "If the jury after having retired to deliberate upon the *Page 186 case shall receive other testimony, a new trial shall be granted, and the additional testimony being against the accused, we will not stop to inquire as to its effect upon the jury or jurors." And in Tate v. State, reversing on a similar ground, the court says: "We are left in the dark as to the extent of the discussion of this matter in the jury room, nor are we informed that it had any particular effect as against the defendant, but we are constrained to believe that, as the matter appears upon the record, it must have been to his detriment." The court further says that to permit the testimony given in the jury room would be to deprive the defendant of the right of cross-examination and violative of the fundamental principles underlying the right of trial by jury. Other cases in which there have been reversals upon the ground of a reference to or proof of the prior conviction are Sorrell v. State, 74 Tex.Crim. Rep., 169 S.W. Rep., 299; Eads v. State, 74 Tex.Crim. Rep., 170 S.W. Rep., 145; Kirksey v. State, 58 Tex.Crim. Rep.; May v. State, 59 Tex.Crim. Rep.; Clements case, 69 Tex. Crim. 369, 153 S.W. Rep., 1137; Hughes v. State, 44 Tex. Crim. 296.
Another statute (art. 843, C.C.P.) provides that former convictions shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument. The violation of this statute has been uniformly held reversible error. Davis v. State, 54 Tex.Crim. Rep.; May v. State, 59 Tex.Crim. Rep.; Wyatt v. State, 58 Tex.Crim. Rep.. In the analogous case of McCampbell v. State, 37 Tex.Crim. Rep., relating to the violation of the statute prohibiting the separation of the jury without the consent of the court, there was held a presumption of error, the court saying: "The accused is not alone interested in this matter. The State has an interest in the life and liberty of the citizen. The State has an interest in the purity of the trial by jury. A separation of the jury may result in great injustice to the State as well as the accused, not only in the particular case but as establishing a bad precedent." And in Early v. State, 51 Tex.Crim. Rep., it was held that where a juror talked over the telephone, violative of a statute which prohibited jurors from communicating with other persons without the consent of the court, the presumption of injury would be indulged, at least to the degree that the State would have the burden of showing that there was no injury. Many reversals have been ordered by reason of the failure to observe the rule declaring that defendant's failure to testify shall not be used against him and for the violation of other statutory regulations.
The statute, the violation of which is complained of in this case, is one which expressly directs that a new trial shall begranted where the jury after retirement receives other testimony. The Constitution guarantees a public trial by an impartial jury and that the accused shall be confronted with the witnesses against him; and one of the provisions of the code is that one is disqualified as a juror who is a *Page 187 witness in the case. A juror who knows damaging facts against the appellant should disclose them and disqualify himself upon the ground that he is a witness, and failing to do so and disclosing them to the jury after the retirement can hardly be classed as an impartial juror. The testimony thus received by the jury in its retirement is contrary to the constitutional requirement giving the defendant the right to be confronted with the witnesses against him. Testimony thus received is under circumstances denying the right of cross-examination declared by our courts as an efficacious test for the discovery of truth. Bell v. State, 2 Texas Crim. App., 215. The statutes mentioned were passed to preserve to parties accused of crime the constitutional rights referred to and to protect the State against a corrupt verdict. The inhibition against the reception by the jury of evidence after its retirement, is against legal evidence as well as illegal evidence, but the facts under discussion here relate to illegal evidence only. If on the trial of the case the State had proved over the objection of appellant the prior conviction, it would have given its sanction to the introduction of the damaging fact which was not admissible. Art. 843, C.C.P.; May v. State,59 Tex. Crim. 141. If such evidence were introduced and its admission brought before this court for review, it would as stated in the cases mentioned above, be reversible error. Under such circumstances the court would not call the jurors to inquire whether they were influenced by the introduction of this illegal evidence, but the fact that they were influenced by it would be presumed. It seems illogical to place upon the appellant a greater burden where the illegal evidence is received in his absence in opposition to a constitutional right and statutory provision, than would be imposed upon him if the evidence had been introduced in his presence on the trial. Clements v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 1137. It is, therefore, thought that the conclusion reached by this court as recorded in Lankster v. State, 43 Texas Crim. Rep., supra, and Mitchell v. State, 36 Texas Crim. Rep., supra, is correct. These cases bear evidence of careful consideration of the questions involved. They are characterized by no loose expressions, but with cogency of reasoning and clearness of statement declare that, when a jury after it retires to consider its verdict receives other evidence damaging to defendant, the presumption of injury obtains, to rebut which the State must do more than to elicit the conclusions of the jurors that they were not influenced. These cases have been followed. Ysaguirre v. State, 58 S.W. Rep., 1005; Casey v. State, 51 Tex.Crim. Rep., 102 S.W. Rep., 725; Horn v. State, 50 Tex.Crim. Rep., 97 S.W. Rep., 822; Hughes v. State, 44 Tex.Crim. Rep., 70 S.W. Rep., 746; Clements v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 1139.
In our judgment the facts disclosed by the bill of exceptions show that the jury after its retirement to deliberate upon the case not only received other testimony but received illegal testimony damaging to the appellant, and, further, that the former convictions of appellant were *Page 188 alluded to and used against him in a manner inhibited by article 843, C.C.P. The evidence, in our opinion, does not show that appellant was not injured by these proceedings. In obedience to the command of article 837, C.C.P., appellant's motion for a new trial should have been granted.
Because of the errors pointed out the judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.
PRENDERGAST, JUDGE (dissenting).