The motion for new trial assailed the verdict on alleged misconduct of the jury in many particulars. The trial judge heard evidence of all the jurors regarding the matter, and in his order overruling the motion incorporated his finding of fact relative to each claim of misconduct. These findings are made a part of the qualification to the bill of exception reserved to the action of the court in overruling the motion. In his motion for rehearing appellant complains of our original opinion in sustaining the trial court in two particulars on the issue of misconduct of the jury, one being on the claim that the jury discussed appellant's failure to testify, and the other on the claim that the jury discussed the prior conviction of the codefendant Martin, and the punishment assessed against him.
The finding of the court on the first issue mentioned is as follows: "The Court believes and so finds that reference to the defendant's failure to testify in this cause was not made in the manner as alleged in defendant's motion or its supporting affidavits, but that only a casual reference was made to the defendant's failure to testify; that such reference was as follows and occurred in the following manner: That the juror Hudnall while the jury stood 10 to 2 for conviction, stated to the jurors contending for conviction as follows: 'Why didn't Crawford (County Attorney) put the defendant on the witness stand?' That the juror Matson replied, 'The State can not put the defendant on the witness stand.' Hudnall then stated, 'Well, they questioned his wife,' to which statement Matson replied, 'But the defendant placed his wife on the witness stand.' At this juncture the foreman of the jury, W. H. Janssen, stopped the discussion and read that portion of the court's charge to the effect that the defendant did not have to take the witness stand and that his failure to do so should not be taken as a circumstance against him and that the jury should not allude to the defendant's failure to take the witness stand, and instructed the jury that they must not discuss the matter or consider the matter further; that the reference and discussion ended there and was not again referred to. The examination of the jurors convinces me that the juror Hudnall alone referred to the defendant's failure to testify, as above stated, and that he was promptly stopped and rebuked by the foreman."
The finding of the court upon the second issue mentioned is as follows: "The Court also believes and finds as a fact that no statement *Page 569 was made by the Juror Janssen, Anderson or any other juror in the jury room or at any other time during the progress of the trial that Johnny Martin had been with Scrivnor in the bank robbery at Texas City and was his partner and had been given 35 years in the Texas penitentiary and that the defendant Scrivnor should be given at least as much as his partner, Johnny Martin."
The court further says upon this point in qualifying the bill of exception that it was: "* * * repeatedly brought out in the testimony of many witnesses, particularly Miss Legge and Chester Griffin, that Johnny Martin was the man who participated in the bank robbery along with the defendant Scrivnor, and that he had been tried for said offense. There was no evidence that Martin was convicted, or what his punishment was."
The rule regarding the effect of a finding of the trial judge upon the issue of alleged misconduct of the jury has been stated in various ways. What we regard as a succinct and correct statement of it is found in section 574, Branch's Ann. Tex. P. C., and is as follows: "Where the alleged misconduct was made the subject of diligent investigation by and under the direction of the trial judge and settled in behalf of the State upon conflicting evidence, the decision of the judge will be given as much consideration on appeal as would be given to the verdict of a jury on any other question of fact, and if there is sufficient evidence to justify the action of the trial judge his decision thereon will not be disturbed on appeal unless clearly wrong." Many cases are cited by Mr. Branch in support of the text. In Manley v. State, 92 Tex.Crim. Rep.,244 S.W. 533, many other cases to the same effect will be found collated. Of course, if the finding of the trial judge was in the face of the evidence heard, or was clearly wrong, it would be the duty of this court to revise it upon appeal. The motion for rehearing has made it necessary for the court to painstakingly examine the evidence of each juror heard upon the issue of misconduct. This evidence is incorporated in a bill of exception which covers 147 pages of the transcript. Included in the bill is the amended motion for new trial with the affidavits of some jurors in support thereof, the answer of the state with the controverting affidavits of jurors attached to it, and the oral evidence of the jurors heard by the court upon the motion. It is clear that the jury did not reach a verdict until about nine o'clock on Sunday night. The verdict was not returned into the court until Monday morning. After the verdict had been agreed upon both as to guilt and punishment, and had been prepared by the foreman, signed by him, and placed in his pocket, the jurors both on Sunday night and Monday morning engaged in some general discussion with reference to the case, and at that time reference was made to the codefendant Martin having theretofore been tried and having received a punishment of 35 years in the penitentiary, and some juror said appellant ought to feel singularly fortunate in the fact that he did not get as much as *Page 570 Martin; but this occurred after the verdict had been agreed upon. We are convinced from a careful reading of every line of evidence heard upon the issue of misconduct of the jury that the trial judge is sustained in his finding upon both of the issues presented in the motion for rehearing, and that no error is presented.
We desire to commend the learned trial judge for the manner in which the record comes to this court. His finding upon the issues of fact with reference to the alleged misconduct of the jury have been extremely helpful and have saved this court much labor which would otherwise have been required in analyzing the mass of testimony without a definite statement from the court as to his finding upon the particular issues.
The motion for rehearing is overruled.
Overruled.
ON APPLICATION TO FILE SECOND MOTION FOR REHEARING.