This is an appeal from a conviction of murder in the first degree with the death penalty assessed.
In the village of Rose Hill, Dallas County, Texas, there lived a man by the name of Frank Wolford. On November 11, 1908, he, in company with his stepson, and one of his neighbor's sons, Wesley Anderson, young boys, went to the city of Dallas with a wagon load of onions, his stepson's name being Epps Gohlson. These parties put up at the wagon yard, and on the night of November 11 they were out walking on Main Street, strolling around looking at the sights, when along about 8 or 9 o'clock the deceased and the boys concluded to go back to the wagon yard, and going east on Main Street to where Dove Street intersects the same, three negroes passed them. One of the negroes asked for a match of the deceased, and deceased said he had none. The deceased and the two boys kept on east up Main Street, and when they got to where Duncan Street crosses Main Street they were again accosted by the three negroes who had asked for a match before that. Appellant pulled his gun or pistol and ordered them to throw up their hands. This the deceased and the boys did, and commenced screaming or holloing, and one of the negroes commenced trying to go through the man's pockets, when the deceased made fight and resisted the efforts of the negro to go through his pockets, and pushed the party away. About the third time the party seized him deceased cut him with his knife, and the negro took his handkerchief out and put it up to his ear, and said, "Damn him, he cut me," and appellant said, "Ain't you going to give me what you've got?" The deceased said no, and when he said that appellant fired, and deceased fell, and the two boys ran off a little piece, and appellant in company with the other two negroes ran off. From the wounds received Wolford died, and *Page 554 appellant in this case some two or three months afterwards was arrested in the city of Washington, D.C., returned to Dallas, tried and convicted and given the death penalty.
The State's witness, Eugene Jones, and Walter West, who were with appellant, and assisted in the robbery, turned State's evidence, and were used by the State as witnesses against appellant upon the trial of this case. It may be stated that Gohlson, the stepson of deceased, and Wesley Anderson, both corroborated the testimony of the accomplice, Eugene Jones, and fully identified the appellant as the party who fired the fatal shot that caused the death of deceased Wolford. There is no question on this appeal made on the sufficiency of the testimony, nor is there any complaint at the charge of the court.
1. Appellant made an application for a continuance for the testimony of a witness by the name of Mary Sidner, who resided in Dallas County, by whom he proposed to prove, and could prove, if she was present, that he, the appellant, on the night of the killing and before the killing left his pistol with the said Mary Sidner, and did not have said pistol at the time of the homicide. No bill of exceptions was reserved to the action of the court in overruling this application for continuance, and it may be said in passing that the motion for a continuance fails to disclose how this testimony could have been material. That he may have left his pistol with the witness on the night of the killing, and never had that pistol, would not go to show that he did not have a pistol at the time of the killing. While we are not permitted to revise the application for a continuance in the absence of a bill of exceptions, in view, however, of the death penalty being assessed in this case, we have made this statement to show that no possible injustice could have been done appellant by overruling the application for a continuance.
2. In the motion for a new trial it is complained that the court should have granted a new trial in order to allow him to procure the testimony of the absent witness, Mary Sidner, as shown by his application for continuance, because he had not had sufficient time to employ counsel to defend him, and that counsel were appointed to represent him, and they had not had sufficient time to acquaint themselves with the defense. There is nothing in the record to show whether this ground of the motion for a new trial is true or not. There is no bill of exceptions in the record, and this court can not revise the action of the court below upon this question. The motion for new trial is not sworn to, hence this court can not say that appellant was forced to trial without the necessary preparations for a trial of this importance and magnitude.
3. The fourth ground of the motion for a new trial complains that the verdict is contrary to the law and the evidence. To our minds the evidence is amply sufficient to sustain a conviction. In fact, there is not a suggestion in the record that appellant was not the party who fired the fatal shot on the night in question. The two boys with deceased *Page 555 fully identified him as the party who fired the shot, and fully corroborated the accomplice Jones on this point. We also find in the record and in the statement of facts that the witness Brandenburg testified that appellant in this case "made a statement while we were at the jail; the county attorney has that original statement; he admitted he was there in that statement." This testimony was not objected to in the trial of the case. The accomplice Jones testified that at the time that appellant shot and killed deceased Wolford, that Walter West, or "Shine," as he was commonly called, was trying to go through the pockets of deceased when deceased drew his knife and cut the said Walter West, or Shine, on the neck, or close to his left ear. When Walter West was arrested he was found to have this cut on his left ear, and also his coat was cut. Adam Guinn testified that he was in the saloon business, and that between four and five o'clock of November 11, the day of the killing, he saw close to his place of business, and in front of his saloon, which was situated at 817 Elm Street, the appellant, Bubber Robinson, Genie Jones and Walter West in company together. The witness had some words with Genie Jones at the restaurant, and when Genie Jones walked out of the restaurant all three of the parties walked down the street together, going east. When we take into consideration the testimony of the accomplice that the three parties were together on the night of the killing and attempted robbery, that in the killing one of these three men was cut, that the three men were seen together about five o'clock on the evening of that day, that the appellant fled and was caught in Washington, D.C., that the two little boys who were with deceased at the time identified Bubber Robinson as the man who fired the shot, we are inclined to hold that the guilt of the appellant was established beyond doubt, and if he was guilty, and the testimony of the witnesses was true, the jury having passed upon that, this court would not be justified in disturbing the verdict on this ground; and that if there was any error committed in this case the wrong must fall upon the witnesses who testified, and not upon the verdict of the jury or the action of the lower court.
4. We find in the record one bill of exceptions. It seems that during the trial of the case, and while the State was introducing its testimony, after two or three witnesses had testified, the court took a recess for some ten minutes. The jury repaired to the toilet room in charge of an officer. The toilet room was situated across the courtroom, and some twenty-five or thirty steps from the jury box; that the jury filed out, and when they got to the door of the toilet room the deputy sheriff discovered that one of the jurors was not with them. He returned to the jury box and found the juror, T.H. Spain, sitting in the box. He took him and went to the toilet room where the balance of the jury was; that the separation was not more than six or eight minutes; that not a word passed between this absent juror and any outside party. Now, complaint is made before this court that this *Page 556 was such misconduct and separation on the part of the jury as would vitiate the verdict, and for that ground this case should be reversed. Article 725 of the Code of Criminal Procedure provides: "After the jury has been sworn and impaneled 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 attorney representing the State, and the defendant, and in charge of an officer." This article has been before this court for construction in many cases, and where there has been a substantial violation of this article this court has not hesitated to reverse the judgment of the court below wherever the testimony showed that the jury separated, and such separation resulted in injury to the appellant, and even though injury did not result to appellant, if the separation was such as to place the escaped juror in a position where he might be tampered with, but this court has never extended the rule to the point that has been asked for in this case. In Champ v. State, 32 Tex. Crim. 87, this court held that an accidental separation of the jury for a few minutes will not constitute reversible error, where there was not the slightest possibility that they were thereby influenced in their findings; and in Wakefield v. State,41 Tex. 556, the Supreme Court held that a juror separated from the others without permission of the court, and unaccompanied by an officer, is not of itself sufficient ground for a new trial, it not appearing that such separation had any effect on the fairness of the trial. The case most nearly in point, however, is the case of Jones v. State,13 Tex. 168, where it was held that where the jury separated while the bailiff was conducting them through a crowd, but it did not appear that they had spoken to anyone, the separation was not such as to vitiate their verdict; and in the case of Jack v. State, 26 Tex. 1, the Supreme Court said: "It must be shown that the misconduct or separation has affected the fairness or impartiality of the trial." The mere separation of a jury pending verdict is not cause for a new trial; in addition to the separation, in contravention of law, it must be further made to appear that by reason of such separation probable injustice to the accused has been occasioned. See Ogle v. State, 16 Texas Crim. App., 361; Defriend v. State, 22 Texas Crim. App., 570; Stewart v. State, 31 Tex.Crim. Rep.; Taylor v. State,38 Tex. Crim. 552. It is unnecessary to cite further authorities upon this subject. Suffice it to say that there is not a circumstance or a suspicion that the mere accidental separation of the jury in this case could in anywise have affected the verdict, or could have thrown a shadow upon the impartiality and fairness of the trial in this case.
Owing to the death penalty assessed by the jury we have thought it proper to notice every possible objection that could be urged in this case. However, we have inspected the record and transcript filed in this court, and we have been unable to discover any error in the trial of the case in the court below that would justify this court in disturbing the solemn verdict of a jury that was impaneled to try this *Page 557 case. Ordinarily, cases of this sort are such as to arouse public indignation, and sometimes public feeling does invade the jury box, but there is not a thing in this record that would suggest to the mind of any fair and candid man that there was anything that transpired in the court below that would suggest anything other than a fair and impartial trial under the forms of law by a jury selected as required by law, and this court feels constrained to not only affirm this case, but to say that any other verdict than the one rendered could not be said to meet the demands of the law.
Finding no error to justify a reversal, the judgment of the court below is in all things affirmed.
Affirmed.
ON REHEARING. March 23, 1910.