Conviction for murder; punishment, five years in the penitentiary.
From this record we learn that deceased Burch herein shot and killed Jess Howard, father of appellant, about August 29, 1931, at San Angelo, Texas. Appellant was then in Arizona. He came at once home, and on September 10th following shot and killed Burch who was sitting talking to Sharp. Appellant walked up, asked deceased if his name was Burch, and, upon getting an affirmative answer, he fired. Deceased, who was unarmed, fled, and appellant emptied his pistol at the fleeing man, who was struck by several bullets. No defense was offered on the trial except that appellant was agitated by passion. He said he hardly knew what he was doing at the time.
But two bills of exception appear, neither of which presents error. The first set up complaint that appellant was not allowed to tell what a third party had told him regarding the wife and daughter of deceased, a matter wholly foreign to any issue in this case. The other complains of the court's action in sustaining the states motion to strike from the record certain statements of the mother of appellant made by her on the hearing of the motion for new trial. We see nothing in the statements referred to which, if considered, could reflect on the fairness or impartiality of juror Jones, for which purpose alone same could have been admitted. There is nothing in this record supporting the proposition that juror Jones was unfair or prejudiced, or that he refused to answer any questions asked him on his voir dire, or that he then made false or misleading answers to any question asked. He stated that he knew appellant and his deceased father, but did not know deceased Burch. He was not asked if he knew the mother of appellant.
Appellant set up in his motion for new trial that there existed enmity and ill-feeling against his mother on the part of juror Jones — but he nowhere avers that such feeling, if it existed, embraced himself, or that by reason thereof Jones was prejudiced against appellant, and we observe that the facts heard by the court when the motion for new trial was presented seem not to support either proposition. The only testimony *Page 373 offered by appellant even remotely suggesting any animosity or prejudice on the part of Jones toward appellant was that appellant's mother had washed for Mrs. Jones some two years before this homicide, and that a misunderstanding then arose between the two women over some cheap article of clothing which was not returned with the laundry. Appellant had nothing to do with the matter and knew nothing of it apparently. Touching the matter, Mr. Jones testified on the hearing of the motion for new trial that he never had any trouble with Mrs. Howard over the washing; that he knew his wife did have some trouble, but this was women's matters which did not affect him. He further testified that he told his wife at the time it occurred that it was a closed incident and to have no words over it. We might observe, in line with our conclusion that the record fails to disclose that Jones was unfair, etc., that, when the jury retired, they unanimously voted that appellant was guilty, and on the first vote on penalty one man voted for twenty-five years, another for two years, while Jones and nine others voted for five years, this being the verdict of the jury. We find nothing showing that Jones exhibited malice, ill will or prejudice against appellant while in the jury room. Nine jurors, including Jones, voted against suspending appellant's sentence from the first. Two of the jurors who were for suspension of sentence (Meers and Cox), were the only jurors offered on the hearing of the motion for new trial by appellant, and neither of them detailed any statement of Jones, or act of his, which showed animus on his part toward appellant. Jones and two other jurors were introduced by the state. All five of the jurors introduced upon the hearing of the motion for new trial voted at the beginning for a penalty of five years, and did not change.
Another ground for new trial advanced by appellant was that after retirement the jury received other testimony hurtful to him, but, as we read the statement of facts heard on the motion for new trial, same seems to consist of testimony that some one, not Jones, said in the jury room that Burch had sons, the size and ages of which were not mentioned, and further that Jones in the jury room said that at a time some two years before this killing, Mrs. Howard, the mother of appellant, did the family washing for his (Jones') family. Whether this was used or intended as of weight for or against appellant or the connection in which it was said is not made to appear. Mr. Meers, witness for appellant, testified as follows: "The statements made by Mr. Jones that Mrs. Howard, the mother of the defendant, *Page 374 had washed for his wife was while the jury was deliberating on the whole case."
Juror Cox merely said it was before the jury had arrived at a final verdict. Juror Rollins said he did not know what they were discussing when he heard Mr. Jones say that Mrs. Howard worked as hard as the rest of the family; that she took in washing, and had washed for his wife. Rollins further said that he did not hear Jones say anything derogatory of Mrs. Howard or the family. Juror Howell said he did not remember what was up for discussion when reference was made to the fact that appellant's mother took in washing. He did not know until he got in the jury room that appellant's mother bought groceries from Jones and paid for same in washing.
Such matters, to call upon this court to reverse the judgment therefor, should be such as that reason and common sense can see that same were harmful to the accused, and we do not think the showing here sufficient.
We have here a case in which nine men voted for a penalty of five years when the lowest punishment might have been two. The entire jury then came to the penalty voted for by the nine men. Also nine men then voted against suspending sentence. The entire jury came to an agreement on this view. Now, on the ground that in the jury room some one said that deceased had sons, and that one of the jurors who voted for five years and also voted against suspending the sentence, at some time in the jury room said that the mother of the accused had washed for his family to pay a grocery bill, we are asked to hold these of probable or possible injury to the accused and to reverse the case. To the writer it occurs that knowledge of the poverty of the family, of the willingness of the mother thereof to do manual labor to help, would go far to induce grant of suspended sentence in order that the son, the accused in this case, might render aid, if indeed such be in fact a consideration allowable under the supposed purpose and intent of the suspended sentence law. In other words, it appears to the writer that the statement made by Mr. Jones in the jury room would have more weight in favor of the accused than against him. That deceased had sons, their ages unknown, seems a matter of no moment. The general discussion had in the jury room, which was gone into extensively upon the hearing of the motion for new trial, was apparently a matter of right for the indulgence of the jury and discloses no wrong.
Finding no error in the record, the judgment will be affirmed.
Affirmed. *Page 375