Appellant was convicted of manslaughter, his punishment being assessed at confinement in the penitentiary for a term of two years. The former appeal of this case is reported in 79 S.W. Rep., 37; 9 Texas Ct. Rep., 813.
The first bill of exceptions complains that the court erred in overruling application for continuance for want of the testimony of Jim Brumblow. The record shows that this is the third or fourth continuance granted appellant, even conceding the probable truth of the testimony of the absent witness, it is purely cumulative of the testimony of other witnesses, as shown by the record, and the court did not err in overruling the same.
Bill number 2 shows that while defendant was on the stand as a witness, he was asked by his counsel the following questions. "Is it not a fact that Frank Rainey (brother of Quince Rainey) is here now in attendance on this trial as a witness, and has he not been in attendance at every trial of this case?" A. "Yes, he is here now and has been at every trial of the case." Q. "Is it not a fact that he was summoned by the State, and the State has failed to put him on the stand to testify?" A. "Yes, he was summoned by the State, and although now present in court, and has been present at every trial of this case, and the State has failed to put him on the stand to testify." Q. "Is it not a fact that Claud Elmore is here now in court, summoned as a witness for the State, and the State has failed to put him on the stand?" To which question the witness answered, "Yes, he is here, summoned as a witness for the State, and has been here at the previous trials of this case, the State put him on the stand at the last trial, but failed to put him on at this trial." "Is it not a fact that Joe Fincher is here in court now and the State has failed to put him on the stand as a witness at this trial?" A. "Yes, he is present here at court and the State has failed to put him on the stand." Q. "Is it not a fact that Jesse Hearston is here now and the State has failed to put him on the stand, *Page 277 and is it not a fact that he has been here at every trial of this case and the State has failed to put him on the stand, except at the first trial of this case when there was a hung jury?" A. "Yes, he is here now in court and the State has failed to put him on the stand and has never used him as a witness except at the first trial when the jury hung." Q. "Is it not a fact that you have been out on bond all the time?" A. "Yes." Defendant was then turned over to counsel for State to cross-examine, and Mr. Mathis propounded the following question: "You told Mr. McMahon that you had been out on bond all the time, — do you mean to say that you have been out on bond all the time?" To which he answered, "Yes, except when I was convicted." Q. "Did you put Mr. Hearston on the stand at the time you were convicted?" To which appellant objected on the ground that same was an attempt to get before the jury immaterial and irrelevant matter, and was an allusion to the former conviction of defendant in this case, and was in violation of the plain provisions of the statute which forbids counsel from making any allusion to the former trial and conviction of defendant. The court sustained the objection, and counsel also objected to the conduct of counsel for State asking said question, because it was his purpose to bring before the jury the fact that defendant had been convicted by a jury of twelve men upon the same charge that he was then being tried for, and did get before the jury said facts, in that by asking such question, defendant's counsel was forced to object to the same, and the court refused to compel defendant to answer the question, which caused the jury to believe and know that he had been convicted on the former trial of the case. State's counsel then addressed the court and stated, in the presence and hearing of the jury, that defendant had already testified that he had been convicted, in answer to the question that he asked him, if it were true that he had been out on bond all the time. Defendant said he had been out on bond all the time, except when he was convicted. Appellant's counsel then stated to the court that if defendant had made that statement he did not hear it; and therefore did not object to the same at the time, and now here desired to make the following objections to the testimony, and ask that the same be stricken out, and that the jury disregard the same. Defendant objected to the testimony because drawn out by the State on cross-examination, and was irrelevant, immaterial, and calculated to injure defendant before the jury. The court stated he would charge the jury to disregard said evidence, and did so charge the jury in his written charge. We have heretofore animadverted upon the efforts of the prosecution to use the previous conviction as a predicate for a verdict upon a trial then being had, which is expressly inhibited by the statute. However, we do not think that the record before us shows such conduct on the part of State's counsel as justifies the reversal of this case. We desire again to renew our admonitions heretofore expressed in the opinions of this court against this character of examination of witnesses and *Page 278 conduct of counsel. It seems that, without objection, defendant stated he had been convicted.
Bill of exceptions number 3 complains of the failure of the court to give a special charge. So far as applicable it was given in the main charge of the court.
The fourth bill complains that the State was permitted to prove that deceased was a delicate and sickly man, and to prove the relative size of defendant and deceased. We see no error in this. While, as appellant insists in his brief and argument, a small man can shoot as well as a robust one, yet there seems to have been a direct contact and assault made by appellant upon deceased just immediately before the shooting. Furthermore, appellant is complaining of the violent character of deceased, both by his general reputation and his personal knowledge of him. Under the peculiar facts of this case, we think this testimony was germane and proper.
The second ground of the motion for new trial complains of the misconduct of the jury in arriving at their verdict. F.A. Cottle, one of the jurors, makes an ex parte affidavit, attached to the motion and made a part thereof, in substance, as follows: that when the first ballot was taken five jurors voted for acquittal and seven jurors voted for conviction. And after awhile the second vote was taken, and six voted for acquittal, and six for conviction. This second vote was taken just before the jury retired for the night, and on the next morning another vote was taken, and the jury then stood seven for conviction and five for acquittal. The jury remained this way until the last vote was taken. "I then proposed a compromise verdict; that is, I agreed that if all the jury would vote for manslaughter and two years punishment, and also agree to sign a petition for pardon, I would agree to vote for manslaughter and two years, and all the jury consented to this, and we took a vote which resulted in defendant's conviction." J.M. Moore, another one of the jurors, made affidavit substantially to the same facts. Under the laws of this State, when the jury is impaneled, they are sworn to try the case according to the law and the evidence. Now, in this case we have two jurors, who were evidently sworn, making affidavit that they did not try the case according to the law and the evidence adduced. The bare statement of this, shows the outrageous conduct of the jury. Here we have one oath against another oath; one, in which he swears he will try the case according to the law and the evidence, and another in which he publicly confesses by affidavit that he did not do so. If this were a question of fact upon which we could pass, we would be at a loss to know which oath to accept. But, under the decisions of this court, and all courts, such reprehensible conduct is not permitted to be used to set aside and destroy the solemn verdict of the jury. In Montgomery v. State, 13 Texas Crim. App., 74, two of the jurors agreed to a verdict of conviction upon an agreement that the jury would sign a pardon to the governor for defendant. We there held that defendant will not be permitted to show any such fact, and the court would not have erred, if he had *Page 279 stricken the two affidavits from the record of the trial court. To permit a juror to impeach his verdict in any such manner would be to sanction a very reprehensible practice, and would be fraught with great danger to the due and orderly administration of justice.
Appellant urges various and sundry exceptions to the charge of the court, but we think the charge is an admirable presentation of the law applicable to the facts of this case. The errors pointed out in the charge of the court on the previous trial have been eliminated on this trial. The verdict of the jury is amply supported by the evidence, and the judgment is affirmed.
Affirmed.