Conviction for burglary; punishment, two years in the penitentiary. *Page 294
A storage warehouse was burglarized on the night of August 26, 1929, and a new four-door, three-window Ford sedan car was taken therefrom. The house was entered by sawing the lock. The next morning the sawed lock was found in the grass near the door. The car was taken on Monday night. It was found in Breckenridge, Texas, some two hundred miles west of Fort Worth, according to the state witnesses, on the Wednesday following. The state introduced one Serren who testified that he and appellant burglarized the house in question; that, after they went to the house, appellant went out and came back presently with a hack saw which was used by them in sawing off the lock. He detailed how they pushed the car out of the place, got in it, and went toward Fort Worth. He said he went to sleep in the car, woke up the next morning west of Fort Worth on the road to Breckenridge, got out of the car, and left it in charge of appellant, and came on back to Denton. The state introduced witnesses who saw appellant sitting in a car in Breckenridge, Texas, answering in every way the description of the alleged stolen car, and that this was a day or two before the sheriff from Denton county came to Breckenridge. These witnesses said appellant's brother-in-law was near by at the time they saw appellant in said car. Mr. Cultra, a car storage man doing business in Breckenridge, was introduced, and testified that appellant and another man came to his place in the alleged stolen car and stored it. He said the other man was driving the car. He delivered this car to the sheriff of Denton county who came out in a day or two and got it. The fenders of the car were described as being slightly bent and scarred. The car found by the sheriff in possession of Mr. Cultra was identified by the owner as the one taken from the burglarized house. The evidence appears ample to support the conviction. Appellant's counsel has filed an exhaustive brief presenting the various questions raised.
We find only one bill of exception in the record. Its complaint is that the court erred in the hearing of the motion for new trial, in that he permitted a juror to testify orally to certain facts which evidently appellant thought should be established otherwise. One of the allegations in the motion for new trial was that juror Kyle had made false statements in his examination upon his voir dire. It appears from the record that general questions were asked the jurors as to whether they were or had been peace officers or deputy sheriffs, and that juror Kyle, in common with the others, answered said question in the negative. It was alleged in the motion for new trial *Page 295 that this statement was untrue and misleading. There were also allegations of misconduct on the part of the jury, and the court heard evidence in connection with the motion for new trial. Mr. Kyle was permitted to testify that he was not a deputy sheriff, and had never been a deputy sheriff, and had never been sworn in as deputy sheriff, and had never been elected to any office. We perceive no error in the action of the court in allowing the witness to answer these questions. In presenting this contention in his brief appellant cites Meador v. State, 94 Tex.Crim. Rep., and Bolt v. State,112 Tex. Crim. 267, and authorities collated on pages 247 and 313 of 16 Rawle C. L. We are in harmony with the general principle that false material misstatements by a prospective juror made when questioned upon his voir dire might call for the granting of a new trial, but are of opinion that nothing appears in the instant case supporting the proposition that Mr. Kyle made any false statement. In addition to what appears in the bill of exception, we observe that the sheriff of the county testified on said hearing that Kyle had never been a deputy sheriff. He said that Kyle had accompanied him upon one liquor raid, but, as far as he knew, this was the only aid he had ever furnished to the sheriff's office.
We have carefully examined the statement of facts heard by the court upon the hearing of the motion for new trial, in view of appellant's complaint in said motion of a separation of the jury, and that members of the jury talked with outside persons after their impanelment, but are not in accord with either contention. It was shown that two rooms in the court house at Denton were equipped with locks, one on the second floor where the jury deliberated in the daytime, and one on the third floor where they slept when held overnight. It appears that the trial began one morning and was not concluded until the afternoon of the day following. That night one of the jurors complained of illness, and was taken from the second floor where the other eleven jurors were left, to the third floor by an officer and there locked in the sleeping room usually occupied by the jurors. Something like an hour afterward the other jurors were conducted to the same sleeping room. They were not out of the building at any time. The record affirmatively shows that no one approached or conversed with the ill juror or the others during the interim. Similar facts in principle were held not to constitute a separation of the jury such as would call for reversal in Wood v. State, 84 Tex.Crim. Rep.. See, also, Jones v. State, 69 Tex.Crim. Rep.; *Page 296 Watson v. State, 82 Tex.Crim. Rep.; Chant v. State,73 Tex. Crim. 345; Cade v. State, 96 Tex.Crim. Rep.; Tucker v. State, 115 Tex.Crim. Rep..
The record entirely fails to show any communication between the members of the jury and outside persons further than that a man came up to them on the street or in a restaurant and said, "Good morning," and made some remark about the weather. When some one of the jurors said to him that they were a jury, he apologized and went away without further speech. We do not think this any violation of the law forbidding communications between the jury and persons not members thereof. Hamilton v. State, 83 Tex.Crim. Rep.; Patterson v. State,106 Tex. Crim. 553; Newton v. State, 114 Tex.Crim. Rep..
Complaint is made, based on an exception thereto, of paragraph six of the court's charge, which is as follows: "You are instructed that the witness Raymond Serren is an accomplice. You cannot convict the defendant upon the testimony of the said witness Raymond Serren unless you believe that his testimony is true and that it shows that the defendant is guilty of the offense charged against him; nor unless you further believe that there is other evidence in the case, aside from, and independent of, the testimony of the said Raymond Serren, corroborative of his testimony, and tending to connect the defendant with the commission of the offense charged."
We do not think this objectionable as conveying to the jury the court's opinion that appellant participated in the crime, nor that it imposes a less burden upon the state in respect to the corroboration of the accomplice than the law contemplates, but, if any doubt could arise in this regard, it would be removed by the fact that two special charges asked were given, in one of which the jury were informed that it was not intended in paragraph six of the charge to convey the idea to the jury that, because Serren took part in an offense, that defendant was also a party thereto. The other charge supplemented the main charge on the question of corroboration.
Appellant also urges that there is not sufficient evidence to corroborate Serren. We have carefully examined the statement of facts. Without attempting to set out in detail all the corroborating facts, it was in testimony that appellant, Serren, and another party were seen together in Denton on Monday night of the burglary; that the lock of the burglarized building was sawed; that some time that night between 8:30 and 10 o'clock appellant went to Mr. Stowe and borrowed from him *Page 297 a hack saw; that either the day following the burglary, or the next day, appellant was seen in Breckenridge sitting in a car which answered every description of the alleged stolen car, his brother-in-law being near; that on one of these days appellant and another party, not answering the description of appellant's brother-in-law, took the alleged stolen car to Cultra's storage house and left it there, the other man driving the car; that the alleged stolen car was recovered by the sheriff of Denton county from the possession of Mr. Cultra Wednesday evening after the burglary on Monday night. Appellant did not testify, nor introduce any evidence seriously questioning any of the above matters. We think the evidence amply sufficient to corroborate the accomplice.
No error appearing, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.