Upon an indictment and trial for murder appellant was convicted of manslaughter with the highest punishment assessed. This case has been before us heretofore on habeas corpus and is reported in 73 Tex.Crim. Rep., 164 S.W. Rep., 377.
Appellant was a married woman thirty-two years old. She had been married more than thirteen years and had a son about twelve years old. Deceased, John Stewart, was a young unmarried man about four years younger than appellant. She, with her husband and child, had lived at their home in Sterling City, Texas, for several years prior to 1913. She was engaged in the millinery and tailoring business and her husband was a clerk for a lumber company. Their places of business were a block or two apart. Deceased also lived in Sterling City from the latter part of 1911 to about April, 1913. She and deceased became acquainted in 1911. Soon thereafter he became a very frequent visitor to her at her place of business when her husband was not there. Deceased, it seems, became much attached to her and loved her, so he told her. She reciprocated his love. The evidence clearly justifies the conclusion, although denied by her, that this relationship ripened into illicit intercourse between them. He visited her at her home at nights when her husband was away and she alone. By mutual engagement about the 1st of April, 1913, deceased met her out at her barn one night while her husband was at home. Her husband detected them together at the barn and accused her of infidelity to him and sexual intimacy with deceased. At her solicitation, as well as for his own safety, deceased thereupon removed from Sterling City to Snyder, in Scurry County, where his widowed mother and other members of the family then resided, and thereafter continued to reside at Snyder. Her husband's discovery and accusations resulted in her leaving her home in Sterling City and going to her sister's in Teague, Freestone County, Texas, early in April. While at Teague she wrote deceased some letters which tended strongly to show her attachment for him and their previous illicit intercourse. She was away from her home and with her sister at Teague only about a week. While there her husband went on some business from Sterling City to Beaumont, Texas, and while away wired her to meet him at Temple and go back home with him, which she did. She protested all the time her innocence to her husband of any illicit relationship with the deceased, and they continued to live *Page 579 together from that time to the time she killed the deceased, on January 20, 1914, she claiming that from time to time during this time her husband treated her well and at other times very badly because of his discovery and his charges of infidelity against her. While at Teague she received letters from the deceased. Upon leaving Teague she requested her sister to write deceased and procure the return to her sister from deceased the compromising letters she had written to him. For some reason deceased failed or refused to return the letters, but kept them. About two weeks after her return home with her husband, on April 26, 1913, she wrote deceased telling him that she did not care for him; that she hated him; that he had wrecked her home and caused her to lose the affection and confidence of her husband and denouncing deceased. On May 9th following, she wrote deceased another letter telling him she regretted writing him as she had in the one of April 26th, and requesting an interview with him soon, and requesting a reply to be addressed to her sister which she would procure.
The State introduced evidence tending strongly to show, though denied by her, that appellant and her husband went from Sterling City to Snyder in their automobile in July, 1913, heavily loaded with firearms, to kill the deceased at that time. The State also introduced much evidence showing the movements of appellant and her husband from about January 6, 1914, in their automobile again heavily loaded with firearms, which tended strongly to show that it was the intention of one or the other or both of them to then hunt down the deceased and kill him. Their movements were shown from about January 6, 1914, when they traveled from Fort Worth in their automobile to her husband's brother's in Dickens County, and thence from Dickens County down to Snyder, showing that on the evening of January 19 they reached a point near Snyder some time in the evening and waited there till after dark before going into Snyder; that while thus waiting she inquired for deceased from some citizen who passed her, indicating clearly that she was then seeking information if deceased was at Snyder; that after dark they went from their stopping place several miles from Snyder direct into Snyder in their automobile. She said that as she drove into Snyder she thought she saw deceased; they drove on around in the automobile until they got near the residence of deceased's mother when she got out, carrying with her Savage automatic pistol, which carried nine steel cartridges, which she continuously thereafter carried concealed about her person; that at the time she got out of the automobile she had an understanding with her husband that she would meet him the next day at Roscoe, a station reached on one of the railroads from Snyder, and that her husband went there and waited for that purpose. Soon after she got out of the automobile she walked some block or two to the Maxwell Hotel in Snyder, kept by Mr. J.V. White, where she registered in the hotel register as "Mrs. C.C. Evert, Ft. Worth," and was assigned to room 22 by Mr. White. She is shown to have gone from that hotel that night, soon after she registered, out into the town and at a point where it is evident from all the testimony *Page 580 she anticipated she would meet the deceased, but did not do so. It is unnecessary to detail all this evidence which tends so strongly to show that she was hunting for the deceased with the evident purpose of killing him upon sight, as she was not convicted of murder but of manslaughter. She is also shown, the next day, to have gone out in the town with a veil over her face and with a rain-proof coat on, which would prevent her from being recognized by one who knew her, still evidently on the hunt for deceased. She is also shown to have been out in front of the hotel a great deal of the time when she was not perambulating the streets, evidently watching for the deceased. The evidence is conflicting whether she had a veil over her face while she was out in the town and at the time and immediately before she killed the deceased. The preponderance of the evidence would show that she thus went all the time and did not raise the veil from her face until at the very moment when she shot and killed the deceased. The killing occurred early in the evening of January 20, 1914. The hotel where she stopped was two doors east from the northeast corner of the public square. The postoffice is on the west side of a street, going north from the northwest corner of the public square. The north side of the public square is occupied by business houses fronting south. In front of these houses was an ordinary concrete sidewalk about ten feet wide. Very shortly before she killed deceased it was shown that she was sitting on the sidewalk in front of the hotel; that deceased went to the postoffice and returned therefrom to the northwest corner of the square and crossed the street at the corner from the west side to the east side in front of the First National Bank building, which was on that corner. Where deceased stepped up on the sidewalk in front of said bank was plainly in view and in one block, and across one street, and two houses from where she was sitting. The evidence would clearly justify the conclusion that she saw and recognized deceased as he stepped up on the sidewalk in front of the bank. At this time she had the head of a little girl sitting by her side, in her lap. She hurriedly lifted the child from her lap, immediately got up and started somewhat briskly down the sidewalk to the point where deceased was and where she killed him. She went immediately and directly from the hotel, as described above, without stopping, to where she killed the deceased. Many persons were on the sidewalk and about it from the northeast corner of the courthouse square to and beyond the bank building. The evidence is contradictory as to whether the deceased had just reached the sidewalk and stepped up on it in front of the First National Bank when she reached that point and killed him, or whether he had been there some short time and had sat down on the sidewalk with his back towards the bank building and his face somewhat south towards the public square. She contended and testified, and others also, that she met him at this point with his face towards her; that he had his open pocket-knife in his right hand; that he shifted it to his left hand, made a motion therewith towards her and threw his right hand down towards his right side where he then had his six-shooter. However, the preponderance *Page 581 of the evidence and the fatal shots which killed the deceased, clearly justified the jury to believe that the deceased was sitting on the sidewalk with his back towards the bank, his face fronting south, and that she shot and killed him without his knowing who it was, or without his making any demonstration whatever with the knife or any attempted demonstration with his right hand towards his pistol. The witnesses differed as to the number of shots she fired. All of them showed that not less than four were fired, others that one or two more were fired. There is no controversy, either by the witnesses, or from the wounds found on the body, that no shot hit him in the front part of his body anywhere. One shot struck him in the back of the flesh part of the left arm, entering the rear part of the body just below the armpit and passed entirely through his body, emerging near the front part of his right side near the armpit and passing through the front flesh part of the right arm. This ball, after passing entirely through both arms and the body, stopped in his shirt on the front and outside of his right arm. Another shot struck him near the lower part of the left shoulder blade about an inch and a half from the spinal column and passed entirely through the body, emerging in the front near the left nipple. Another shot penetrated about the same location to the right of the spinal column and passed through the body, lodging near the right nipple but did not emerge through the skin. Another shot penetrated his right buttock, ranging upward and inward and passing into the center of the body, remaining therein. When the first shot was fired, which evidently struck him one of said four wounds, deceased lunged forward, grasping the city marshal, Mr. Wolfe, by whom he was sitting on the sidewalk at the time. This threw him off of the sidewalk on the ground out in the street. He immediately called for someone to stop the woman from shooting, clinging to the legs of Mr. Wolfe and struggling to get up. Immediately after she fired the first shot into the deceased and when he fell off of the sidewalk into the street, she stepped off of the sidewalk, walked around and proceeded to immediately fire the other shots into his body. All the witnesses say that while she was doing this the back of the deceased was toward her. The marshal called to her to stop shooting and attempted to catch her pistol and prevent her shooting. In doing so one of the shots penetrated his right hand. She immediately stepped back and away so the marshal could not interfere and fired one or more of the shots into the body of the deceased. She claimed she knew nothing of what she did or what was done or said after she fired the first shot. The other witnesses show that about the time she ceased firing the marshal confronted her and demanded her pistol. Some say she delivered it to him; he and others say that she moved it behind her to prevent the marshal from getting it when he was reaching for it. The marshal says she said you had better call an officer. He replied that he was an officer, the city marshal, and then he reached around behind her with his wounded hand and took the pistol from her. That when she fired the last shot she smiled and several of the witnesses say that she was not excited, — very cool and calm. *Page 582 As soon as the pistol was taken from her by the marshal she discovered blood on her hand and garment from the hand of the marshal and requested to be taken into the drug store so that she could wash the blood off of her hand and garment, which was done. She claimed she did not intend to kill the deceased but to see him and get her compromising letters from him and have him sign a statement that he had not had sexual intercourse with her so as to show her husband and pacify him.
This is a sufficient general statement of the case. We have not undertaken to give the testimony of the various witnesses wherein it conflicted, except in the general statement above.
We take up the questions raised by appellant in the order in which she presents them in her brief.
She first claims that the evidence was insufficient to sustain the conviction in that it shows that she killed the deceased in self-defense. Our study of the evidence has convinced us that the preponderance of the evidence on this question was clearly against her and we can not disturb the verdict on that ground.
The next question is shown by one of her bills wherein she objected to the State proving that the name she signed had been erased from the hotel register by some unknown person. The bill on this point shows substantially this: While Mr. White, the hotel proprietor, one of the State's witnesses, was on the stand, he testified that on the night of January 19, 1914, she came to his hotel alone and registered on his hotel register; that she signed the name "Mrs. C.C. Evert, Fort Worth," and he assigned her to room 22, he marking opposite her name the figures 22. He had the register with him on the stand while he was testifying, which was then introduced in evidence. After so testifying and identifying appellant as the woman who had so registered and signed, this occurred: "Is her name there now? A. It is not. Q. What has become of it? A. Some fellow has erased it. By Cunningham: We don't know if her name is there, if it is not there why it is not admissible unless they can connect her with it in some way. I understand that we have some photographs and we have no objections to them, but we do object to them making any proof of anything that has been done on that, it has not been in her possession, unless they can connect her with it some way. Q. Mr. White, did counsel for the State cause you to have photographs of that record taken soon after that name was signed there? A. Yes, sir. Q. Examine that (hands him photo) and see if that is a correct photograph of the record as it was when she signed there. (Witness takes and examines the photo.) A. As to the condition it was in and the condition it is now. A. Yes, sir; all the other names are there but Mrs. C.C. Evert. Q. All the other names on the book are there but Mrs. C.C. Evert. Is this a correct photograph as it was before her name was off of the record? A. Yes, sir. Higgins: We offer the photograph. Cunningham: No objections. Q. The name Mrs. C.C. Evert, Fort Worth, 22, is that the place that she signed there? A. Yes, sir. Q. On the original record? A. Yes, sir. (Photograph is now shown to the jury.) Q. Now, Mr. White, *Page 583 how long did that record continue to look like she made it there before it was erased by someone? Cunningham: We object to it unless they can connect the defendant with the erasure, for she was in jail there for a good while. Higgins: We can not connect her with it. Court: You can state what was the original condition and what it is now. Snodgrass: We want to except to the introduction of any changed condition now on the ground that that character of testimony is calculated to prejudice the rights of the defendant. The court: It is already in. By Snodgrass: We ask the court to exclude it on the ground witness does not pretend, there is no pretense, that the defendant or anybody acting as agent for her had anything to do with changing it, and we further ask the court to instruct the jury specifically that they can not consider the statement that it is changed, or to its changed condition as any evidence against the defendant. (The bill specifically states as a fact, `there was no testimony by any witness showing that the defendant or anyone authorized by her, had made said erasure.') The court: Objection is overruled. Snodgrass: We except to the action of the court. Q. Now, Mr. White, after she came did you assign her a room, after she had signed the register? A. Yes, sir. (Later in the trial the following occurred): By Higgins: We have come to the conclusion that the register itself, and erasure shown, the erasure made subsequent to the time of her signing it, might not be admissible, and we will ask the court to withdraw the register from the jury so it will not be in, unless they will withdraw their objection to it. Snodgrass: We do not object to the register, we just object to showing there was a change made in it. Higgins: We ask the court then to ask the jury not to consider that there had been a change in it. Court: If both of you want it I will exclude it. Do you (addressing counsel for defendant) join in this motion, they have made a motion to exclude testimony of the witness White. Snodgrass: With reference to the register having been changed we made a motion. The court: Do you renew your motion here? Snodgrass: Yes, we objected to it at the time. Court: Gentlemen, on motion of both parties, the statement of the witness White that the register had been changed, and all testimony along that line about the register there showing on the register C.C. Evert, the statement that the register had been changed, is excluded from your consideration, and you will not consider it for any purpose whatever. The court approved this statement from the stenographer's notes to the bill. It shows the correct way the matter came up and was disposed of, the register with the erasure was admitted without objection."
Now what are the facts as shown by this bill? They are: Mr. White, the hotel proprietor, swore that appellant came to his hotel alone at night on January 19, 1914, and registered in the name of "Mrs. C.C. Evert, Fort Worth." He had the hotel register with him, which was identified by him as such at the time. The best evidence of the fact was the hotel register with her signature thereon. This was the very first testimony on that subject. If the register had not then *Page 584 been introduced the jury would not have understood it and perhaps would have doubted White's testimony of the fact. Of course, the appellant herself had not at that time testified and the State could not know that she would do so. Hence, the State asked Mr. White if her name was then on the register and he answered that it was not. And when asked what had become of it, he said: "Some fellow has erased it." No intimation by this that she had done so, and as immediately expressed by her attorney, Mr. Cunningham: "We don't know if her name is there, if it is not there, why it is not admissible unless they can connect her with it in some way." Then stating that they had had photographs taken of it when it was there, and further showing that the register had not been in her possession and that she had been in jail for some time. The State's attorney at once stated specifically that they could not connect her with the erasure, and the bill states clearly as a fact, that there was no testimony by any witness that she or anyone authorized by her, had made said erasure. In our opinion the register was clearly admissible under the circumstances of this case and at the state of the trial when it was admitted. The ground of objection was that the register in its changed condition with her name erased "is calculated to prejudice the rights of the defendant." The whole matter shows that the State specifically admitted that they could not connect her with the erasure and did not attempt to do so. But suppose that the register was inadmissible. Under the circumstances and the proof made, it could in no possible way have injuriously affected the appellant; that she so registered at the hotel under that assumed name is in no possible way disputed. She swore it herself. Her identity, or that she was the person who killed the deceased, is in no possible way disputed.
Again, suppose the register with her name erased was not admissible. It unquestionably was thereafter withdrawn from the jury by the express consent of the appellant with the consent of the State and any possible harm that it could have caused appellant was cured by its withdrawal.
The rule is, as contended for by appellant, that where illegaltestimony of a material character which is calculated toinfluence or affect the jury adversely to the appellant, is admitted over his objections at the time, the withdrawal of it later will not cure the error. The appellant cites authorities to that effect and also Mr. Branch lays this proposition down and cites many authorities from this court to sustain it in section 322 of his Criminal Law.
But it is as equally well settled and the rule, that if thetestimony is not of a very material character and not likely toprejudice the jury, the error in admitting it is cured by withdrawing it. This correct rule and the application of it, is clearly and well established by the many decisions of this court. We cite only some of them. Miller v. State, 31 Tex. Crim. 609, 21 S.W. Rep., 925; Hatcher v. State, 43 Tex. Crim. 237, 65 S.W. Rep., 97; Robinson v. State, 63 S.W. Rep., 869; Trotter v. State, 37 Tex.Crim. Rep., 36 S.W. Rep., *Page 585 278; Jones v. State, 33 Tex.Crim. Rep., 23 S.W. Rep., 793; Morgan v. State, 31 Tex.Crim. Rep., 18 S.W. Rep., 647; Sutton v. State, 2 Texas Crim. App., 342; Roberts v. State,48 Tex. Crim. 210, 87 S.W. Rep., 147; Martoni v. State,74 Tex. Crim. 90, 167 S.W. Rep., 351; sec. 1120, White's C.C.P.
In Hatcher v. State, supra, this court said: "Some of the cases hold that the exclusion of such testimony (inadmissible) will not cure the error, while others hold the contrary. In such a conflict the true rule would seem to be that, if the admittedtestimony is of such a damaging character as to suggest theimpossibility of withdrawing the impression produced on the mindsof the jury, and thus curing the error, it will be cause for reversal; otherwise, if the testimony is not of that damagingcharacter, and not likely to influence the jury, it can bewithdrawn, and the error of its admission thereby cured."
In Miller v. State, supra, which was a murder case, with the death penalty inflicted, and affirmed, this court said:
"The affidavit charging defendant with the offense of slander was also admitted in evidence. The slander charged imputed to the female mentioned a want of chastity of a most revolting nature. The contents were hardly germane to any issue in the case, in the absence of evidence bringing home knowledge to defendant of the existence of the affidavit, and we are not prepared to say that it may not have prejudiced defendant in the minds of the jury. The court, however, subsequently withdrew the affidavit from the consideration of the jury and instructed them verbally, as well as in writing, to disregard it as evidence in the case.
"The effect of withdrawing and excluding testimony erroneously admitted, which was or may have been prejudicial in its nature and tendency, has been the subject of much discussion in the courts, and the decisions are not harmonious upon the question. The weight of authority, however, seems to be that such withdrawal cures the error, and such has been the opinion entertained by this court. Sutton v. State, 2 Texas Crim. App., 342; Marshall v. State, 5 Texas Crim. App., 273; Phillips v. State, 22 Texas Crim. App., 139 (2 S.W. Rep., 691); Nalley v. State, 28 Texas Crim. App., 297 (13 S.W. Rep., 670); see also State v. Towler, 13 R.I. 661; Thomp. Trials, secs. 715, 722, 723, and notes.
"In Sutton's case, supra, it was said: `But, conceding the court erred in admitting this testimony, the error, if in fact any was committed, was corrected by the court afterwards withdrawing it from the consideration of the jury.' This ruling has been approved in subsequent cases, and the doctrine uniformly upheld, that when improper evidence has been admitted over objection, it is the proper practice, and may become the duty of the court, to exclude or withdraw it from the jury and instruct them to disregard it in finding their verdict. Authorities above cited; Willson's Crim. Stats., sec. 2514.
"To hold otherwise would be to sanction the doctrine that the court could not cure any error into which it may have fallen by mistake or inadvertence, and thus render it helpless to rectify errors committed, *Page 586 and the trial a mockery and a farce. We can not sanction such a doctrine. It is not intended here to hold that cases may not arise in which the withdrawal of testimony would not cure the error committed in admitting same, for it may occur that such evidence was of such a prejudicial character as to so influence the jury against the defendant that he would be deprived of a fair and impartial trial. We do not think, however, this evidence of that character."
So that in no event did the court commit reversible error in this matter.
The cases cited and relied upon by appellant show that the testimony therein was not only inadmissible and admitted over the objections of appellant at the time, but that it was of a materially injurious character and that such evidence was kept before the jury some days, commented upon by the attorneys in their argument and not withdrawn until all this had occurred. Take for instance Kemper v. State, 63 Tex.Crim. Rep., cited by appellant. Most damaging illegal testimony was admitted over appellant's objection. This evidence remained before the jury for several days, and was specially argued by several of the attorneys in the argument of the merits of the case, and then, and not till then, withdrawn from the jury by the court, the attorney for the State then stating, the effect of "that which is once in can not be withdrawn."
Appellant next complains that a new trial should have been granted to her because of what Mr. J.B. Murray, brother-in-law of one of the jurors, said to the jury. The State contested this ground of appellant's motion and the court heard evidence thereon. To the motion is attached the affidavit of T.W. Holden to the effect that on Saturday, August 8th, he was sitting on the south steps of the courthouse about 1:30 or 2 o'clock talking to a man, and J.B. Murray, who was at a watermelon wagon (out in the public square), called to the jury who were in the third story of the courthouse and asked if they wanted some melons. Some member of the jury replied, "We have two, and they are fine, that's enough for a while." That Murray then came by the steps where affiant was sitting, looked up and said: "Get busy, you ain't doing anything." Some member of the jury answered: "We don't have to." On hearing of the motion said Murray testified that he was a merchant in the clothing business and that someone, he couldn't tell who, in the third story of the courthouse called for a watermelon out of one of the windows; that he turned to get it and someone said that they had two up there and didn't need any. He supposed that whoever it was in the third story was in the jury room in the third story of the courthouse; that if he made any remark to the jury in any manner, shape or form about the case he didn't recall it.
The court committed no error in refusing a new trial on this ground. The testimony on the subject could in no possible way be construed to be such a communication to the jury by an outside party as would vitiate the trial. It did not injure appellant and it could not.
The only authorities cited by appellant on this subject are Nance v. *Page 587 State, 21 Texas Crim. App., 457, and March v. State, 44 Tex. 64 [44 Tex. 64]. Both of these cases are against appellant's contention. In the Nance case the court said:
"That two of the jurors conversed with a person not a juror about the case, pending the deliberation of the jury upon the case, does not necessarily entitle the defendant to a new trial even in a felony case. It must be made further to appear that by reason of such improper conduct, injustice was probably done the accused. In March v. State, 44 Tex. 64, it is said that the conversation of a juror with a person not a juror, must be such as was calculated to impress the case under consideration upon the mind of the juror in a different aspect from the one made upon the mind from hearing the evidence, or of such a nature as was calculated to result in harm to the party on trial, or the conversation will not be a ground for a new trial." See also Dowd v. State, 55 Tex.Crim. Rep..
Appellant next contends that a new trial should have been granted because one of the other jurors separated from the panel. The State also contested this ground of the motion. The court heard evidence thereon. To the motion appellant attached the affidavit of several persons. The evidence on this question is to this effect: That while the case was on trial the court one day took a recess of some ten minutes. The jury in charge of the sheriff and one of the deputies were conducted out of the courtroom to an adjoining hall on the same floor to the water cooler and toilet; that before taking them out all other persons were removed from about the cooler in the hall and the toilet. The jury remained out there some few minutes, some of them getting water, others going into the toilet to attend to nature's calls. Some three or four of the jurors were in the toilet at the same time, the others in the hall about the water cooler, right at the toilet. It seems as each got through in the toilet they went back into the hall adjoining, only a few feet away, to where the other jurors and officers were. One of the jurors was detained in the toilet attending to a call of nature after the others had gotten out of it. No one whomsoever was in there with him at any time while the others were in the hall. Without any of them noticing that this juror in the toilet was still therein, they announced that they were ready to return to the courtroom. The officer thereupon returned to the jury box with them, some thirty-seven feet from the hall. Just as the jury were in the act of taking their seats in the jury box, some of them having done so, others not, the officer discovered that there were only eleven men. He immediately announced the fact to the jury and required that they return with him to the hall, which they all at once proceeded to do. As they got near the hall door in the courtroom the other juror, in company with the district judge, entered the courtroom from the hall door thereof. The jury then returned to the jury box and took their seats. The juror testified that no one was in the toilet with him nor in the hall when coming out of it, only he saw the district judge and asked him where his crowd was. The judge expressed astonishment that this juror was there alone, and at once, *Page 588 with the juror, entered the courtroom when he joined the others as stated; that no one spoke to him and he spoke to no one. The time elapsing from when the eleven jurors left the hall at the water cooler and toilet to the time they returned to the jury box after the other juror joined them was a very brief space of time, the officer in charge of the jury swearing that it was something like only a half minute, — couldn't have exceeded one minute. The evidence as a whole clearly justified the judge to find and believe, as he did, that the juror spoke to no one and no one spoke to him, except what occurred between the judge and himself, as stated above, and that no one other than the judge was in a position to have spoken to the juror or anyone to him. The affidavits of several persons attached to appellant's motion would indicate that there were persons about the hall and just inside of the courtroom at the door who were in such proximity to the juror as to have spoken to him or they to him. None of them indicate, however, that the juror said anything to any person or any person said anything to him other than the judge.
In our opinion this clearly was no such separation of the jury as the law could have contemplated would vitiate the trial.
The statute, article 745, Code of Criminal Procedure, is: "After the jury has been sworn and impanelled 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."
Article 837, Code of Criminal Procedure, is: "New trials, in cases of felony, shall be granted for the following causes, andfor no other."
This statute gives nine separate grounds which would authorize a new trial. Not one of them says that the separation of the jury shall be such ground. The only one of them which could at all be construed to embrace the separation of the jury is the eighth, which is: "Where, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial; and it shall be competent to prove such misconduct by the voluntary affidavit of a juror; and a verdict may, in like manner, in such cases be sustained by such affidavit." The statute says that for such misconduct to authorize a new trial it must be when "the court is of opinionthat the defendant has not received a fair and impartial trial." Not that separation alone would authorize or require a new trial, but only when the court is of the opinion that because thereof the defendant has not received a fair and impartial trial. The decisions of this State are not uniform on this subject. These articles of our Code, 745 and 837, have been therein continuously, at least since 1856, when the Codes were first adopted. The Supreme Court of this State, when it had criminal jurisdiction, in construing them held that before the court was authorized to grant a new trial because of the separation of the jury, the appellant had to show that because thereof he had not had a fair and impartial trial. In other words, unless he showed injury he was not entitled to a new trial. On this subject, in Jack v. State, 26 Tex. 1, the Supreme Court said: *Page 589
"There may have been misconduct on the part of some of the jurors; but, when a new trial is sought on the ground of misconduct of the jury, it must be shown to have been such misconduct as has affected the fairness and impartiality of the trial."
In Wakefield v. State, 41 Tex. 556, the Supreme Court said: "It is not pretended that the juror conversed with any person in regard to the case, or that the defendant has not received a fair and impartial trial because of any misconduct of the jury. The juror may have been guilty of misconduct but it is not shown that it has had any influence on the fairness of the trial, and that the discretion of the court was not properly exercised in overruling that ground of the motion. Jack v. State, 26 Tex. 1, and Jenkins v. State, 41 Tex. 128."
In Ogle v. State, 16 Texas Crim. App., 361, this court, through Judge Willson, said: "The mere separation of a jury (pending verdict) is not cause for a new trial. In addition to the separation in contravention of the law, . . . it must be further made to appear that by reason of such separation probable injustice to the accused has been occasioned." He cited the statute and Davis v. State, 3 Texas Crim. App., 91; Cox v. State, 7 Texas Crim. App., 1; West v. State, 7 Texas Crim. App., 150; Russell v. State, 11 Texas Crim. App., 288.
In Stewart v. State, 31 Tex.Crim. Rep., where it was shown that two jurors, unaccompanied by any officer, had separated from the others, unaccompanied by any officer, took some bedclothes upstairs, went into a friend's room, got a drink of whisky, and upon being asked by him they told him the jury had not agreed upon a verdict, the court said: "This, however improper and suspicious, would not of itself warrant a reversal; it not being shown that probable injustice was done."
In Boyett v. State, 26 Texas Crim. App., 689, where the jury separated and appellant sought a new trial on that account, which was a murder case with a life sentence and affirmed, Judge Hart said: "In cases like the one in hand, and where the jury separated without permission of the court, to reverse, it must appear that the juror conversed with others about the case, or was guilty of misconduct to the prejudice of the accused." He cited Jones v. State, 13 Tex. 168, and the Jack and Wakefield cases, supra, and March v. State, 44 Tex. 64; DeFriend v. State, 22 Texas Crim. App., 570.
Judge White, in section 865, page 559, of his Annotated Code Criminal Procedure, says: "To reverse because the jury separated without the consent of the court, it must appear that the separating juror conversed with other persons about the case, or committed other misconduct to the prejudice of the accused." He treats this subject on two grounds: First, "separation by consent," and second, "separation without consent." The statute and decisions also make this distinction. This case comes within the second class.
We have many cases more recently decided, and even almost down to this very date, citing and approving the rule above announced and the decisions cited in this second class. However, other decisions may be found indicating, and perhaps holding, that when a separation of the *Page 590 jury has occurred by permission of the judge, contrary to the statute, the court will not look into the question at all to see whether any injury has occurred or might have occurred. These decisions are more especially under said first class. Clearly the trend of the later decisions under both classes go no further than holding that when a separation has occurred, the burden is on the State to show that no injury occurred. This may perhaps be regarded now as the rule. Certainly it is as liberal to an accused as the statute authorizes or the courts should require.
In Dowd v. State, 55 Tex.Crim. Rep., in considering the misconduct of the jury in one separating from the other jurors and talking about the very case on trial, this court said: "In appellant's motion for a new trial he complains of the misconduct of the jury in that, after the jury retired to consider their verdict, one of them talked with the county judge of the county. In the course of said conversation, the county judge remarked to the said juror, Lyon, that the defendant (meaning this defendant) was guilty of murder. That said judge did not know until said juror was leaving his office that he was a juror in the case. That the juror was absent from the others, and defendant says that such separation was not had by his knowledge or consent, nor by the knowledge or consent of his counsel. This motion is sworn to by the defendant, but we find no evidence in the record to support the affidavit; but the judgment of the court recites that the court heard the evidence on the motion, and that same should be overruled. This is the only matter complained of in the motion for a new trial." And the court affirmed the case.
In Robinson v. State, 58 Tex.Crim. Rep., in which the court affirmed a death penalty, this court, through Judge McCord, said: "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 by reason of such separation probable injustice to the accused has been occasioned" — citing and reviewing many of the cases cited supra and others.
In Barnes v. State, 61 Tex.Crim. Rep., the court, through Judge Davidson, said: "One of the grounds of the motion for new trial is that the jury separated after being empanelled. The facts show that the horse of one of the jurors had gotten out of the pasture where he had placed it for safe keeping during the trial, and was passing along the street dragging a rope; that the juror left the jury and caught the horse a distance of twenty-five or thirty steps away, and that an attorney in the case walked up and took the horse to take care of, or at least to relieve the juror of the trouble of the matter. There was nothing said by the juror to the attorney or the attorney to the juror, or by anybody to the juror in regard to the case. The above is the substance of the matter in regarded to the separation. We are of opinion that this is not of sufficient importance to require a reversal."
In Galan v. State, 68 Tex.Crim. Rep., 150 S.W. Rep., 1171, the court, through Judge Davidson, in discussing appellant's bill complaining that the court permitted part of the jurors to separate and *Page 591 intermingle with other people in the courtroom without being accompanied by proper officers, and in violation of the statute, said: "It does not undertake to show that the jurors had anything to do with the people, or talked with them, or that anybody spoke to them." See, also, to the same effect, Kinney v. State,67 Tex. Crim. 175, 148 S.W. Rep., 783; Phillips v. State,59 Tex. Crim. 534; Cabrera v. State, 56 Tex. Crim. 141; Jones v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 897; Parshall v. State, 62 Tex.Crim. Rep.. A large number of other cases to the same effect could be cited, but we deem it unnecessary to do so.
We have considered all the cases cited by appellant to maintain his proposition. The facts in these cases are nothing like the facts in this. In them a clear separation of the jury was shown and for such length of time and so great distance as to make them wholly unlike this case.
Sterling Bynum, among other things, testified, in substance, that he was in the street some eighty feet, at least, distant from the deceased at the time appellant first shot the deceased; that he, the witness, was facing east; that deceased's back was to him, deceased also fronting east; that appellant was fronting toward him, saying: "The first thing that I saw, I saw this woman raise her veil with her left hand and then at that time she was pulling the gun out and he throwed his hand up, his left hand up that way (indicating). He had his hands in front of him like this, and he was either at the time whittling or cleaning his finger nails. He throwed this left hand up and dropped his right hand down and when this hand got up about there, it looked like, then the gun fired. Yes, sir, he threw his right hand down. He throwed his right hand down to about his belt, that is where he had his right hand at when he started falling. As to which I saw first, the man's hand dropping to his side or the lady drawing the gun, will say that they both happened at the same time." The bill then shows: "Whereupon, the witness was then asked: Q. What did you think he (John Stewart) was doing with his right hand?" The State objected to this and the court sustained the objection and would not let the witness answer the question. If permitted, the witness would have answered that the impression on his mind at the time was "that the deceased was attempting to draw his pistol." The court, in approving the bill, did so with the statement and qualification that "according to the testimony of this witness at the time of the occurrence referred to he was behind Stewart going in the same direction, about eighty feet from him, Stewart's back to him. The court did not think this character of testimony admissible in the first place, but if it was, then the court did not think the witness in a position to give any impression." The court's action and ruling was correct. What the witness thought or that he thought deceased was attempting to draw his pistol, is a matter of opinion and conclusion. The jury were to draw their conclusion and not the witness his. Besides, as is stated by the judge, he was in no position to see or tell that deceased was attempting to draw a pistol. The appellant herself was permitted to testify to all of what she claimed was deceased's acts in *Page 592 this particular at the time and what she thought and believed he intended to do thereby. She was the actor and person to be affected thereby and not this witness. The cases cited by appellant on this point, in our opinion, are not applicable.
Appellant's next contention is presented in what she calls her bills of exceptions Nos. 5, 6, 7 and 8. This appears to be a kind of running bill of exceptions. They show this: That Joe Lockwood gave material testimony in appellant's favor on her claimed self-defense to the effect that he was looking at appellant and deceased just before the first shot was fired and saw the deceased extend his left arm in the direction of appellant and throw his right hand to his right hip and about that time he heard the first shot fired.
Appellant killed deceased January 20, 1914. She was immediately arrested. The grand jury of Scurry County indicted her on March 16, 1914. On March 28th the court changed the venue to Jones County. After her arrest an examining trial was held. Lockwood did not testify in that trial. He was not even subpoenaed as a witness in the case until after the trial at which this conviction occurred had been going on for some days. In fact, just a short time before he testified, and he was the very last witness appellant first introduced in rebuttal. The State, in its cross-examination of this witness, evidently was contending that his evidence was a recent fabrication and was undertaking to show that he was biased against the State and in favor of appellant. He first, on cross-examination, when asked whom he had first told about what he testified he had seen, said: "I never told anybody until they found it out. I do not know how they found it out." He further testified that he first told Mr. Payne, one of the attorneys for the appellant, and that he first told him about a month before the trial; that it might have been longer; that Payne didn't go to him and ask him about it, but he went to Payne and told Payne about it; that he went up into his office and told him. Then he said that he told Mr. Payne about six months before what he knew about the case, or maybe longer than that. Then the bill shows that this occurred: He was asked and answered that said Payne, appellant's attorney, had a railroad suit for him, but denied that he had any other case for him. Mr. Snodgrass, one of appellant's attorneys, then said: "We object to that and ask that the jury be instructed not to consider the question and answer." The court instructed the jury: "You will not consider that question and answer." Mr. Wright, another of appellant's attorneys, then said: "We want a bill also to the question being asked."
The cross-examination then continued for some time, then this occurred: The State's attorney asked him, "Have you been charged with a felony in Scurry County?" Mr. Cunningham, another attorney for appellant, said: "Let counsel limit the time; it is a proper question if limited properly, but we object to it unless it is limited properly." The court said: "Limit the time." The State's attorney asked: "Well, within the last four or five or six years, you would say you wasn't?" A. "No, sir; I haven't." Mr. Snodgrass: "We object to the statement *Page 593 of counsel and except to it." The court: "What statement?" Snodgrass: "The statement that you haven't been in the last four or five years." The State's attorney: "I asked that if within the last four or five years he wouldn't say that he hadn't and he said no." This is all that occurred on this point at that time.
Then the following occurred: The State's attorney asked him: "Mr. Payne has represented you all the time up there, hasn't he? A. Yes, sir. Q. You stated that Mr. Payne had represented you all the time up there as counsel, hasn't he? A. Yes, sir. Q. W.S. Payne? A. Yes, sir." Mr. Wright for defendant said: "We object to that; that is not impeaching testimony." The court: "Well, no." Mr. Wright: "Also if the witness had a case that he (Payne) was counsel in that does not tend to impeach him." Mr. Higgins, for the State: "It just shows the interest that the witness would have in his lawyer." The court: "I think I will overrule the objection; you can have your bill." Mr. Wright: "We except." This is all on this subject.
Then this occurred: By the State: "Joe, why didn't you tell others who were trying in this case, in this matter, to find out the truth about it, about your evidence? The sheriff or the county or district attorney, who had held a term of court there, or the county attorney?" Mr. Cunningham, for appellant, said: "We object to that as irrelevant and immaterial." The court: "Objection overruled." Mr. Cunningham: "The witness does not have to report his evidence to anybody; especially is he under no obligations to report it to the district attorney or to private prosecution, and we except to it as being immaterial and irrelevant." The court: "Objection is overruled." Mr. Cunningham: "We except." "Q. Why didn't you do so, why didn't you report it to the citizenship of Scurry County, to the officers charged with administering the law? A. I didn't think I had any right to do it." This ends these bills.
None of this was error by the court.
It is elementary by all the text-books and decisions that it is always permissible, on cross-examination, to show the bias, interest, animus and prejudice of any witness who testifies. The motives, animus, interest and bias of a witness is never immaterial or collateral. Great latitude is always allowed in asking questions to develop this on cross-examination. In Blunt v. State, 9 Texas Crim. App., 234, Judge White, for this court, citing text-books and cases, says: "Great latitude is allowed in the questions which a party is permitted and allowed to ask on cross-examination; and he will seldom be stopped by the court, unless the question be manifestly irrelevant to the case, and calculated neither to qualify the examination in chief nor to impeach the credit of the witness. . . . Generally, on cross-examination, a witness may be asked any question the answer to which may have a tendency to affect his credit." Again, in Daffan v. State, 11 Texas Crim. App., 76, this court said: "Generally, on cross-examination, a witness may be asked any question which may have a tendency to affect his *Page 594 credit and it is the right of the defendant to show the animus and bias of a witness towards him and its extent." The State equally has the same right. It is needless to cite the many authorities, both in this State and the text-books on this point. We cite only some of them. Watts v. State, 18 Texas Crim. App., 381; Gelber v. State, 56 Tex.Crim. Rep.; Sexton v. State, 48 Tex.Crim. Rep.; Green v. State, 54 Tex.Crim. Rep.; Crist v. State, 21 Texas Crim. App., 361; Rosborough v. State, 21 Texas Crim. App., 672; Pope v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 611; Earles v. State, 64 Tex.Crim. Rep.; R.R. Co. v. Matthews, 100 Tex. 63; 40 Cyc., 2666; Underhill on Crim. Ev., sec. 222; 5 Jones on Ev., secs. 822, 828; 1 Whart., Crim. Ev., sec. 477; 3 Chamberlayne on Ev., sec. 1785; 2 Ency. of Ev., p. 407; 2 Wigmore on Ev., sec. 948.
It is the uniform practice and always permissible in the organization of a jury to test the jurors' bias, prejudice, interest, etc., by asking whether or not the attorney of the adverse side is the attorney for the juror. This is always done not for the purpose of disqualifying the juror as cause for challenge within itself, but to ascertain what influences such juror may be affected by in order to determine whether the juror will be peremptorily challenged. (2 Ency. of Ev., p. 401; 1 Thompson on Trials, sec. 101, p. 114; 24 Cyc., 277.) We deem it unnecessary to further discuss or cite authorities on this point.
It is always the case that either side has a right to ask and require a witness to answer if he has been prosecuted and convicted of a felony. What occurred on this point, as shown, was certainly permissible under all the authorities.
Also the uniform practice is to ask an adverse witness on cross-examination, whom he first told of his testimony and the circumstances under which he so told them. All that occurred, as shown by this bill, was clearly within the State's rights in cross-examination. R.R. Co. v. Matthews, 100 Tex. 63, and the other authorities cited above.
The court did not err in refusing appellant's requested charge No. 2. The court's charge fully covered this subject. It was:
"You are charged that the defendant had the right to seek the deceased for the purpose of requesting of him the return to her of any letters, if any, she had written to the deceased, and to request of him a written statement to show her husband the previous relations that had existed between the deceased and defendant, and also the right to arm herself against any attacks the deceased might make upon her, or that she reasonably feared he would make upon her while so doing, if any."
Neither did the court err in refusing to give appellant's fourth special charge. The charge of the court on that subject was full and complete. The latter part of that requested by appellant clearly ought not to have been given.
These are all the questions presented by appellant in the able and forcible brief of her attorneys. There are some other questions raised *Page 595 which we have considered but none of them present any error. Appellant does not brief them. The judgment will, therefore, be affirmed.
Affirmed.