I concur in the disposition made of the question in regard to the appointment of a special judge, believing the law relied upon by appellant to be unconstitutional, and, therefore, the Governor had a right to appoint, as he did, the special judge in this case.
In regard to the jury-law question suggested for revision, I have heretofore expressed my views in a dissenting opinion in the case of Bob Smith v. State, 54 Tex.Crim. Rep.;113 S.W. 289, and think my position on that question sufficiently explicit.
I can not agree with my brethren in regard to the matters suggested in the motion for a new trial as to the misconduct of the jury, and matters discussed by them during their retirement, and think they are of such material character as should have required the district judge to grant a new trial, and, upon his failure to do so, this court should reverse the judgment. See Lankster v. State, 43 Tex.Crim. Rep.; Hughes v. State,44 Tex. Crim. 296; Horn v. State, 50 Tex.Crim. Rep.; 17 Texas Ct. Rep., 271; Casey v. State, 51 Tex.Crim. Rep.;102 S.W. 725; Morawitz v. State, 49 Tex.Crim. Rep.; 15 Texas Ct. Rep., 880; Tutt v. State, 49 Tex.Crim. Rep.; 15 Texas Ct. Rep., 38; Terry v. State, 38 S.W. 986; Tate v. State, 38 Tex.Crim. Rep.; Gan v. State, 59 S.W. 896; Blocker v. State, 61 S.W. 391; Darter v. State, 39 Tex.Crim. Rep..
In the case of Horn v. State, supra, before the jury had agreed on the penalty to be assessed against appellant — that is, the number of years — the conviction of his codefendant, Jack Early, was discussed. Early had been previously convicted, in a separate case, for the same offense, and had been given fifteen years, and the matter of his *Page 582 punishment was discussed in the jury room, and this was assigned as error. After such discussion they agreed on the punishment, and assessed it at thirty years confinement in the penitentiary. This language is found in the opinion: "We do not believe that what occurred can be considered as a bare reference to the matter, but was more than this. Evidently it suggests that the juror or jurors who may have used this argument must have had some prejudice against appellant, otherwise they would not have referred to it. It might not have disqualified a juror who knew this fact, but if a juror not only knew the fact, but used it, this, it occurs to us, shows he was influenced thereby himself, and resorted to it for the purpose of influencing others. Appellant's contention here is supported by an unbroken line of authorities in this State, and is of itself sufficient to reverse this cause." Judge Henderson wrote the opinion.
In Hughes v. State, 43 Tex.Crim. Rep., this language is found: "This misconduct is so reprehensible, and is so fraught with probable injury to the rights of appellant, that we can not say that it was not calculated to injure his rights. Instead of a fair and impartial judgment by the jury upon the facts, and conclusion from those facts as to the punishment that the law authorized to be meted out to appellant, we have a verdict predicated probably upon the supposed action, in part, at least, of a former jury. This is not a fair trial under the laws of this State, nor is it a deduction from the evidence. We can not permit such a verdict to stand."
In the case of Hughes v. State, 44 Tex.Crim. Rep., the court uses this language: "The statute is imperative, and must be followed, which says that the jury shall not discuss or use the fact of previous conviction as a predicate or probable predicate for their verdict. It is true, as indicated by the court, that each of the jurors stated that the discussion of the Denton County verdicts did not influence their action in finding the verdict. This is a conclusion so wrought with speculation and caprice that we can not make it the basis of holding appellant was accorded a fair and impartial trial." Judge Brooks delivered the opinion in both of the cases of Hughes v. State, supra. They are in accord with the writer's views and enunciate the correct doctrine.
In the case of Lankster v. State, supra, there had been two former trials and convictions. The jury, after their retirement, after agreeing upon a verdict of guilty, but before assessing the punishment, discussed the previous convictions and punishment. The court held the jury were guilty of misconduct, and the bare fact that this misconduct was of a character calculated to injuriously affect defendant constituted reversible error, and the judgment for this reason alone was reversed.
The statement in the opinion as to what occurred in the jury room is taken as a basis for my dissent, and as having fairly and correctly stated the conduct of the jury during their retirement. It will be observed from that statement that not only the prior convictions of *Page 583 appellant were discussed and urged as a reason why he should not be acquitted, but it was further stated and urged, as a reason why the conviction for death penalty should obtain, that a white man, Holly Vann, had been previously convicted and hanged for the same offense, and that this appellant had had three death penalties prior to this assessed against him for this offense. And in this connection the pungent question was asked, "What would the people of Dallas County think of this jury if they were to send a negro to the penitentiary for the same offense for which a white man had been hung?" Then it is patent that the previous conviction of Vann was mentioned and urged, previous convictions of appellant were used, the fact that he was a negro and Vann was a white man emphasized, the probable censure of the people of Dallas of the jury if they should fail to hang this negro was pleaded, and to such an extent that it almost reached the point of a personal difficulty between the juror Sturgess and some other member of the jury. That the juror may, under such circumstances, say that he is not influenced, does not necessarily control this matter, but may, in fact, tend to show prejudice, as was stated in some of the opinions above quoted. Nor was this all. Before the verdict was reached one of the jurors expressed the wish, or stated in substance, that he wished the appellant had taken the stand; that, had he done so, he might have explained a lot of matters occurring at the homicide. This was not merely a bare allusion to the fact that appellant did not testify. It was more than that. There were things in the mind of the juror that needed explanation, and the appellant failed to take the stand to explain those in accordance with the wish of the juror. They were evidently not explained, and appellant was held responsible to the limit of the law. To the mind of the writer this conduct was of such character that the judgment ought to be reversed. In fact, it is seldom the case that such conduct occurs in the jury room. Without going further into a discussion of these matters, I suggest briefly the above reasons for my dissent, and respectfully nonconcur, and rely in part upon the authorities above cited, though quite a number more might be added.
ON REHEARING. June 23, 1909.