The offense is murder; the punishment death.
Deceased, J. A. Mitchell, was engaged in the grocery and filling station business in the town of Coleman. On the night of January 27, 1927, deceased, his wife, daughter and small granddaughter were in the filling station. The wife of deceased saw a man by the *Page 24 side of the filling station in a stooped position. This man slipped along the wall until he reached the front door. He opened the door, came in and closed it. Deceased was about five or six feet from the door. He had his back to the door and was sweeping the room. The party who entered the door said to deceased: "Poke them up." Deceased turned and faced his assailant, who came to a point within two or three feet of deceased. The assailant of deceased presented a pistol, holding it in his right hand and pointing it toward the body of deceased. The parties faced each other for a minute or two and the assailant then pulled a handkerchief from his neck in such a manner as to cover his mouth. Before he raised the handkerchief the wife of deceased had closely observed his face. Deceased raised the broom in an effort to knock the gun from the hand of his assailant. When deceased raised the broom, his assailant fired and deceased stepped back two or three feet and fell. The wife of deceased and her daughter ran to a neighbor's for help. When they returned to the filling station they found deceased in a dying condition and shortly thereafter he expired. Appellant was positively identified by the wife and daughter of deceased as the perpetrator of the murder.
Appellant relied upon an alibi and offered witnesses who testified that appellant and Claude Maines were in the town of Sonora at about 2:30 o'clock p. m. on January 27, 1927; that said parties were in the town of Rocksprings about 4 or 5 o'clock p. m. on the same day; that on the night of January 27th, a burglary was committed in the town of Menard and that thereafter pursuant to a conversation with appellant the stolen property taken from the burglarized house was found; that none of the marks of identification had been removed from the stolen property. It was thus appellant's defense that he was at another and different place with Claude Maines at the time the offense was committed. Appellant did not testify in his own behalf.
A state's witness who was well acquainted with Claude Maines testified that he saw Maines in the town of Coleman during the afternoon of the homicide.
A careful review of the record leads us to the conclusion that the verdict of the jury is amply supported by the evidence. The distance from Coleman to Menard made it possible for appellant to commit the homicide in Coleman and the burglary in Menard on the same night. Hence, the state's admission that the burglary was committed in Menard was not destructive of the theory that appellant committed the murder in Coleman. The jury were fully warranted in rejecting *Page 25 the testimony of the witnesses to the effect that appellant was in San Angelo, Sonora and Rocksprings on the morning and afternoon of January 27, and were further justified in concluding that appellant, after having murdered the deceased, had gone to Menard, committed the offense of burglary and directed the officers to the stolen property with its marks of identification for the purpose of concealing the murder he had committed.
Bill of exception Number 1 presents the following occurrence: After Mrs. Mitchell, wife of deceased, had positively identified appellant as the man who had killed her husband, she was asked on cross-examination by appellant if she had not consulted a clairvoyant with reference to the person who had shot her husband. She answered in the affirmative. Appellant then asked the witness if said clairvoyant had not described the man who killed her husband as being similar in appearance to appellant. The state's objection to this question was sustained. It is stated in the bill that "the defendant expected said witness to admit that the fortune teller had described a person similar in appearance to the defendant as the person who had committed the homicide, and it should have been considered a circumstance by the jury in passing upon the weight of the testimony of the witness in identifying the defendant upon the trial hereof." The bill does not disclose that it was appellant's purpose to inquire of the witness whether she was in any manner influenced by what the clairvoyant told her. There is no testimony in the record tending to show that the witness was doubtful of appellant's identity. No witness contradicted any statement she had made relative to appellant being the man who killed her husband. It would appear that appellant was attempting by proving a hearsay statement to lay a predicate for an argument to the effect that the witness had identified appellant because a clairvoyant had described to her a man similar in appearance to appellant. The jury had heard both the wife and daughter of deceased unhesitatingly identify appellant; they were aware that the wife had refused to identify a man, who, dressed similarly to appellant, had been presented to her; they knew that she had given a correct description of appellant immediately after the homicide. To hold that the excluded testimony, even if admissible, could have affected the verdict of the jury, would be to say that the jury would have probably concluded that the statements of a clairvoyant operated on the mind of the witness to the extent of depriving her of her understanding of the obligation resting upon her to testify truthfully, and of impelling her to name any person bearing a description *Page 26 similar to that detailed by the clairvoyant as guilty of an offense meriting the death penalty. We are unable to reach the conclusion that the matter complained of would warrant a reversal.
It is shown by bill of exception Number 2 that the rule had been invoked; that when it developed on cross-examination of a witness for appellant that said witness had talked to one Bill Chapel who was present in the courtroom during the examination, the state requested that Chapel be sworn and placed under the rule; and that appellant objected to placing said witness under the rule on the ground that such procedure was prejudicial to his rights, in that it was an effort on the part of the state to impeach appellant's witness without introducing the witness Chapel. Chapel was not used as a witness either by the state or by appellant. We see no abuse of the discretion vested in the trial court in placing the witness under the rule upon request of the state. In his Annotated Penal Code of Texas, at page 197, section 344, Mr. Branch states the rule as follows:
"A wide discretion is confided in the trial judge with regard to the application and the extent of the application of the 'rule' to the witnesses, and the exercise of this discretion will not be revised on appeal except in clear cases of abuse."
Appellant called a witness who testified that he presented a man to Mrs. Mitchell for the purpose of enabling her to determine whether or not he was the party who had shot and killed her husband. When this man was taken into the presence of Mrs. Mitchell she became excited, threw up her hands and screamed. These facts were evidently brought out by appellant for the purpose of discrediting the testimony of Mrs. Mitchell and impressing the jury with the fact that she was mistaken when she stated that appellant was the perpetrator of the crime. Over objection the state was permitted to show on cross-examination of the witness that he had a conversation with Mrs. Mitchell within an hour after he had presented the party to her and that she stated to him, in substance, that said party was not the man who killed her husband. Appellant contended that the testimony of said witness was hearsay inasmuch as he, appellant, was not present at the time the conversation was had. Appellant's objection was not well-taken. He introduced the act of Mrs. Mitchell in screaming for the purpose of discrediting her testimony. Having gone into the detailed act, it was permissible for the state to introduce in evidence the declaration of Mrs. Mitchell made to the same witness shortly thereafter for the purpose of making her act fully understood. *Page 27 Unexplained, the act of the witness introduced by appellant was calculated to impress the jury with the view that she became excited because she believed that the party presented to her was the slayer of her husband. Article 728 Cow. C. P. provides:
"When part of an act, declaration, or conversation or writing is given in evidence by one party the whole on the same subject may be inquired into by the other, as, when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence." See Henry v. State, 291 S.W. 542.
In his motion for a new trial appellant alleged that a prejudiced juror had sat in the trial of the case. The court heard evidence on the question. The juror testified, in substance, that before being selected as a juror he heard Frank Rucker say that he took Mrs. Mitchell over to Abilene for the purpose of identifying appellant; that Rucker said that appellant was brought to the court house and that when he entered the door that Mrs. Mitchell recognized him, and appellant seemed to recognize her. The juror testified that he did not have any right to doubt what Mr. Rucker said about the matter, but declared that he went on the jury without any prejudice against appellant and without any opinion as to his guilt or innocence.
It appears from the testimony of the juror that he entertained no opinion as to the guilt or innocence of appellant at the time he was accepted as a juror. That he was in any manner prejudiced against appellant is not shown. There is nothing in his testimony indicating that he was a disqualified juror. The court would have properly overruled a challenge for cause if the juror had testified on his voir dire examination as he did on the hearing of the motion for a new trial. We fail to find any evidence showing that appellant was injured by virtue of the service of said juror. As far as the record is concerned he was not active as a juror in behalf of the state. He made no statement to the jury concerning the statement he had heard. The balance of the jury whose fairness is not questioned reached the same conclusion as did the juror who was assailed. In short, there is no evidence in the record showing that the juror was prejudiced against appellant. The rule applicable here is stated in Rogers v. State, 3 S.W. (2d Series) 455, as follows:
"Where there is no waiver of the challenge and no lack of diligence in discovering the existence of a ground for challenge to a *Page 28 particular juror who is not absolutely disqualified, it appears to have been generally held in this state that service upon the jury of such a one will not be ground for new trial unless probable injury to accused is shown. Leeper v. State, 29 Tex. Cr. App. 63, 14 S.W. 398; Martinez v. State, (Tex. Cr. App.)57 S.W. 838. For other authorities see note 53, art. 616, p. 52, vol. 2, Vernon's Ann. C. C. P."
Appellant further alleges in his motion for a new trial that the jury after retiring to deliberate upon the case received other testimony. It appears from the evidence heard by the court on the motion that after it had been determined that appellant was guilty of the offense with which he was charged and before the penalty had been assessed one of the jurors stated in the presence and hearing of the jury that at the time appellant was arrested he, appellant, had shot at a negro twice. It appears that the statement complained of was referred to one time. The evidence adduced on the trial of the case disclosed that appellant elicited from one of his witnesses that he, appellant, had related to the witness the circumstances surrounding the robberies committed at Menard and had confessed to the witness that he, appellant, committed said robberies; that he had burglarized the Piggly-Wiggly store in the town of San Angelo; that he had gone to Rocksprings for the purpose of robbing a bank. The evidence heard by the court on the motion for a new trial discloses that one of counsel for appellant made an opening statement to the jury wherein he said that at the time appellant was arrested he was an escaped convict.
The statute provides that a new trial shall be granted — "when the jury, after having retired to deliberate upon a case, have received other testimony." Subdivision 7, Article 753, Code of Criminal Procedure.
Information given by one of the jurors to the others is new and other testimony within the meaning of the statute. Holland v. State, 298 S.W. 898, and authorities cited. In order to warrant a reversal of a case, a transgression against the statute must be such that it could have affected the fairness of the trial. In Hallmark v. State, 230 S.W. 697, Judge Morrow quoted from an opinion by Judge Ramsay, as follows:
"We think the true rule is that where, as in this case, the testimony supports the verdict, and the charge of the court properly submits the case to the jury, that a verdict ought not to be set aside for every incidental and casual mention of a former trial or a former conviction, and that in no case should it be set aside in a case tried *Page 29 according to law, where the conviction is supported by the testimony, unless the court may fairly and reasonably see, in the light of all the circumstances, that such reference and discussion did or might have prejudiced the appellant's case."
The rule is that when the terms of the statute are violated the burden is not upon the accused to show injury, but upon the state to show the contrary. Hallmark v. State, supra. Appellant called one juror to testify to the reference complained of. The testimony of this juror discloses that such reference was but incidental. The remainder of the jurors were not called by appellant. Appellant makes the general allegation in his motion for a new trial that the jury discussed facts and matters not in evidence. He fails to set up what these facts were. It is not clear either from the motion or the testimony of the juror that the alleged reference, if made, was not brought out on the trial in connection with one of the several offenses admitted to have been committed by appellant. Under the circumstances, it is questionable whether this court would be warranted in concluding that the trial judge was not justified in deciding the issue of fact against appellant. Be that as it may, the jury were in possession of facts showing that appellant was an escaped convict, that he had committed a series of robberies and burglaries and that he had intended to commit other offenses. In view of this record, showing as it does the criminal career of appellant, we are unable to conclude that the alleged reference was such as might prejudice appellant's case. Applying the rule announced in Hallmark v. State, supra, and the authorities therein cited, to the facts of the instant case, we are of the opinion that a reversal of the judgment is not authorized.
Finding no reversible error, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.