Mizell v. State

DAVIDSON, Presiding Judge. Appellant was convicted of rape by force and given twelve years confinement in the penitentiary. The indictment contains two counts, one charging rape and the other incest. The facts show that the prosecutrix was appellant’s niece. His wife was in bad health and appellant induced prosecutrix, with the consent of her mother, to come from her home in another county to stay with his, appellant’s, wife. After remaining at appellant’s home about three weeks she and appellant’s wife disagreed so that prosecutrix concluded to return home. Appellant took her to Lufkin to meet a night train. After arriving there they went to the hotel owned by the *242 witness Fuller, engaged a room and retired. They occupied the same room. Appellant put in a call for himself about 5 o’clock in the morning. It seems that the train passed Lufkin at about that hour. The State’s theory is that he had intercourse with the girl while in the room and over her protest. She testified to those facts, and also to. some matters which tended to excuse her for not making an outcry. She gave as a reason for not making an outcry that defendant made certain statements to her which tended to terrorize her. Mr. Fuller, a. State’s witness, testified that he heard noises in the room occupied by them, and among other things that somebody was sobbing or crying. The next morning when the girl was questioned about the matter, and perhaps taken in charge by the authorities, she gave her name as Lillian Jones, and stated that her brother, Charley Jones, spent the night in the room with her, and that she was sobbing and crying because her brother had notified her of her mother’s death. She was carried before the grand jury and made these or similar statements. After being informed that an accusation would be brought against her brother for-incest in another county, she changed her testimony and imputed the whole matter to appellant. This was a case of rape by force and without the consent of the prosecutrix. If she agreed to it or did not make sufficient resistance to come within the statute of rape by force, this case would not be one of rape under that count in the indictment, but. if the act of intercourse was consummated it could and would be a. case of incest. This was one of the serious questions and perhaps the most serious question in the case. There are several bills of exception in the record. That with reference to the application for continuance is not discussed as it may not. arise upon another trial. The witnesses can be obtained. Bill No. 8 was reserved and this quotation is made from it: “I will ask you if they did not talk to you for some time about the fact that it would put your brother in the penitentiary, and if they did not indicate to you that if you would tell on this defendant they would drop and would not consider any further action about your brother,, and what you had said about it (this had reference to the testimony of prosecutrix before the grand jury and the contention of defendant, that before she told on defendant they had offered her brother immunity from a charge of incest in Montgomery County) and the State: objected to the admission of said proposed testimony, to permitting the witness to answer such question, and the court sustained same, to which the defendant then and there excepted and tenders this his bill of exception, for the reason that he expected to prove by the witness, that she was promised immunity for her brother, or that in some way it was substantially indicated to prosecutrix that if she would disclose: on this defendant she and her brother would be given immunity and no punishment would follow, otherwise her brother would be subject-to a prosecution for incest, and an affidavit would be forwarded to the. *243 district attorney of Montgomery County to enable Mm to base the charge.” While this bill is somewhat indefinite and not sufficiently full, yet upon another trial this matter should be permitted to go to the jury if denied by the prosecuting witness. These remarks with reference to this matter are made in passing so that upon another trial if the matter comes up it will be proper for the defendant to show this as attacking the truthfutoess of the prosecuting witness and as to her reasons for changing from her original statements showing that her' brother was with her in the room and not the defendant. Another bill alleges misconduct on the part of the jury in-two respects: First, that they received testimony with reference to the character and standing of the witness Fuller that was not in evidence on the trial; and, second, comment and discussion of the failure of the. defendant to testify in his own behalf. The testimony shows beyond question that whatever there is in this case occurred in Fuller’s hotel,, and that he was an important witness and heard some of the noise which he testified was carried on in the room occupied by appellant and the. girl. His reputation for veracity and as being a man of good reputation was not placed in evidence. There was nobody in the room with appellant and the girl; they occupied it alone, and no witness could have known what occurred except the two. Fuller overheard some noises and confusions and sobbing and crying, but was not present in the room, and interposed no interference in these matters, although they occurred in his hotel, and he and the girl both knew that no outcry was made. There was nobody then who could testify to the immediate facts except the girl and the defendant, and Fuller was the. State’s main corroborating witness. The affidavit of Chester Davis was attached to the motion for new-trial setting up misconduct of the jury in both respects. This affidavit was introduced in evidence on the trial of the motion in addition to the affiant’s evidence} and several of the jurors testified in regard to-these matters. Among other things, it is shown: “I was on the jury that tried George Mizell. He was sentenced for twelve years. During the deliberations of the jury the fact that the defendant did not testify was discussed by the jury. Some of the jurors said that the defendant did not get on the stand and deny anything. They argued what the prosecutrix and others swore against defendant must be true or else defendant would have gotten on the stand and denied it. They said he must be guilty or he would have gotten on the stand and testified that he pleaded not guilty and then would not get on the stand and testify or deny anything that was testified to against him. Several times when an argument was being advanced in favor of defendant against the truth of some statement testified to against defendant some of those jurors favoring rape and the highest punishment would meet the argument by saying that if it was not so defendant ought to have taken the stand and denied it. About three of the jurors were in favor of find *244 ing the defendant guilty of incest omy, while the others wanted to find him guilty of rape. Several of the jurors wanted to give him fifty years, and some were for twenty-five. Some of the jurors were for as low as ten years, before the conversations above set out about the defendant’s failure to testify. In discussing the evidence of prosecutrix some of the jurors said that if it was not true, defendant ought to have gone on the stand and explained it. All this discussion about defendant’s failure to testify took place after we retired to consider of our verdict and before we had agreed whether it was rape or incest, and before we had agreed on the penalty. After we had retired to consider of our verdict and before we had agreed as to whether it was rape or'incest, and before we agreed on the punishment, some one of the jurors suggested that they did not believe all of what old man W. B. Fuller, a State’s witness, testified while on the stand. Some other jurors spoke up at once and said they had known old man Fuller for many years, and knew personally that he was a truthful, honest and straight man, who would not tell anything but the truth. Several others on the jury agreed to this last statement about knowing him personally and knowing him to be truthful, straight, honest and honorable. Those who suggested that they did not believe all Mr. Fuller said about the matter was some one of the jurors who were in favor of a low punishment. Quite a good deal was said by different members of the jury about their being personally and intimately acquainted with Mr. Fuller for many years and knowing him to be truthful and a man of splendid reputation.” This juror was • for convicting for incest and assessing his punishment at ten years in the penitentiary, but he says: “After all of the discussion about the defendant’s failure to testify and the splendid reputation of Mr. W. B. Fuller by those represented that they had known him for many years I finally agreed to convict the defendant of rape and give him twelve years confinement in the penitentiary.” Further he says: “I did not know anything about his reputation as to whether he was a reliable man or otherwise until after I heard the discussion of his reputation by other members of the jury. The statements made by other members of the jury as to the splendid reputation and truthful character of Mr. Fuller and the argument about the defendant’s failure to testify had some influence on me in finally agreeing to find the defendant guilty of rape and giving him twelve years in the penitentiary.” Mr. Mann, foreman of the jury, says: “I was for incest with the highest penalty — ten years. There were two others with me, Mr. Harry Hays and Mr. Chester Davis. That was when we first went out. Between the time when we first went out and the time we finally got together on a verdict of twelve years for rape the matter about the defendant’s failure to testify was mentioned several times — it was mentioned several times.” This witness further stated: “It is my recollection that Mr. Bussell went over that and Mr. McG-aughey. I don’t know hardly how it came up and how they would mention it, but they *245 would make him guilty for it, they would make him guilty for not testifying. I don’t know whether they argued much about it or not but there was a good deal of argument out there, and I heard that mentioned several times. I was not arguing that he was not guilty of rape, but was arguing that I was not satisfied to convict him for rape; I was of the belief that it was incest, and they wanted to make him guilty of rape because he did not testify, is the way that it was I think. I don’t know how it came up, but I was not satisfied with the evidence enough to convict for rape at first and argued that, but some of the others said it was rape and wanted to make him guilty because he did not testify. I don’t know what all was said — so much was said — but several seem to view it that he was guilty because he' did not testify, but to tell you just what was said I couldn’t do it now. We were arguing in there a good long time; some said he was guilty of incest and some rape, and in that argument it was argued a good deal about him not testifying.” Again: “I heard some men on the jury say they knew W. E. Fuller who testified for the State; that they they knew him personally and knew what sort of a man he was. As to whether or not anybody said he was a good fellow, everybody agreed to that. I think I heard some say that they had known Mr. Fuller for years; I heard that mentioned a good deal. Mr. Fuller’s evidence was discussed a good deal, you know. I understand that when we first went out Chester Davis was for conviction for incest- and giving him ten years. I do not know whether he agreed to convict for rape before or after it was discussed about Mr. Fuller. I think Mr. Fuller’s testimony was discussed all along before and after that. I think when that was first mentioned Mr. Davis was for incest and ten years, but after that he agreed to convict for rape and twelve years. When we first went out Mr. Davis and Mr. Hays and myself were for incest and ten years. After considerable argument we agreed to rape and twelve years. I have already told you that some of the jurors mentioned the fact that the defendant failed to testify, but I could not tell you who that was, but I think Mr. McGaughey and Mr. Russell had the most to say about it. Mr. Russell was for conviction and rape at first but I don’t know what penalty he wanted. They were scattered all along, I don’t know just how many years he wanted. He wanted to give a higher punishment than I wanted to give, and Mr. McGaughey was the same. I wanted to give ten years for incest, but some of the others would not come down, didn’t want to come under fifteen years for rape, and we finally agreed on twelve years for rape. I think Mr. Coupland suggested twelve years for rape, and I put.it to a vote and all voted that way. Three of us before that had voted for ten years and incest. I remember Mr. Coupland reading that paragraph of the charge wherein the court instructed the jury not to consider the failure of the defendant to testify, but I don’t think it is true that that was the last time it was mentioned; it was discussed all along as far as that is concerned I don’t believe I mentioned about him not testifying. I know some *246 of them mentioned it all along off and on during the time we were out •but I don’t think I ever mentioned it.” Chester Davis testified. His testimony is not materially different from his affidavit already mentioned. In answer to this question: “Now, you finally agreed to the verdict of twelve years for rape; I want to know if what they said about Mr. Fuller being a truthful and honest man had any influence on you finally agreeing to a verdict of rape and twelve years?” He responded: “I think that would have influenced any man, because it is like this — .” Here the State interposed objection, which was sustained by the court. Further the witness stated: “There seemed to be several of them just like I was about Mr. Fuller’s testimony. I think it influenced me some — I will say it did influence me some.” Again he states: “I think it influenced me to some extent.” The following is also quoted from his testimony: “After we went out in the jury room and had been there a few minutes we elected Mr. Mann foreman and he gave the charge to Mr. Coupland to read. I believe it is true that Mr. Coupland read that paragraph in the court’s charge where the court told us not to consider the defendant’s failure to testify, but some of them had mentioned that before then. There was something said two or three different times before the court’s charge was read about the defendant not testifying. After it was read some of them said we shouldn’t consider that matter. It was mentioned after that about the defendant not offering any testimony; that no witnesses were offered by the defendant’s side. That, is what was said about that — that no witnesses testified on the defendant’s side, and some said something about him not going on the stand. Some of them said the girl had testified, and I think Mr. Hays raised the question about the truthfulness of her testimony, and then it was mentioned about Mr. Fuller’s testimony, and then someone said the defendant’s side did not put anyone on the stand to deny it, and it was mentioned about the defendant not going on the stand and testifying too. When we first got in the jury room is when I first heard it mentioned about the defendant not going on the stand, but that is not the only time I heard it.” Mr. Coupland testified he did not hear any of the testimony with reference to the defendant’s failure to testify, but he says: “I remember hearing someone say that they didn’t see why the defendant didn’t put anyone on the stand, and that is all I heard about that; someone just said they didn’t see why the defendant didn’t put anyone on the stand.” With reference to Fuller he says: “I think someone said something about his reputation being all right or something to that effect, but I wouldn’t undertake to say that is just what was said.” This witness wanted to convict for rape and twenty-five years,-which he says was his top notch. Russell testified substantially as did Coupland. He says: “I never mentioned defendant’s failure to testify myself, but it occurs to me that when we first went out someone said, and it may have been me, that we were surprised at not hearing any of defendant’s • witnesses. I may *247 have said that I was surprised at no witnesses being put on the stand by the defendant’s side.” MeGaughey testified: “I remember someone reading the charge and I remember it said something about us not considering the fact that the defendant didn’t testify, but I don’t remember whether anyone said then, ‘Boys, we must remember that.’” He did not remember any discussion in the jury room about it. He was for twenty-five years and rape He says he did not know whether he took a great deal of interest in trying to get a conviction for rape; he says that he was doing what he thought was right about it, and says “he was for rape first, last and always.” The witness Breazeale testified: “I have known Mr. Fuller personally for a number of years and I have always regarded him as a truthful and honorable man. I .don’t think he would swear a lie. I never heard anyone question his evidence. I told the jury I had known Mr. Fuller for a number of years, as he moved into our settlement when he came from Hewton County, and that I had known him always to be an honorable and upright man and I didn’t believe he would swear a lie. I believed everything he said. I don’t know how many jurors I heard say they knew Mr. Fuller personally, but possibly I heard one or two say that. I heard several say they knew him personally and knew he had a good reputation. I heard, that before we agreed on the verdict and before we assessed the penalty, but we were all for conviction as soon as we went out. I heard that mentioned before we agreed or assessed the penalty.” Another witness says that when they went out the court’s charge with reference to not discussing the fact that defendant did not testify was read. He said it was said that that had nothing to do with it. “After that I heard someone speaking something about the defendant not going on the stand and testifying. Someone said, ‘I guess he thought there was no use — didn’t have any witnesses to put on the stand/ or something to that effect. If anybody said the defendant had pleaded guilty and then wouldn’t go on the stand and deny it, I don’t know who it was. All of them seemed to discuss that some, but I couldn’t name them now. The failure of the defendant to testify wasn’t discussed so very much. It was mentioned but most of them would say that didn’t have anything to do with it. I couldn’t tell you whether anyone said if it wasn’t so why didn’t the defendant take the stand and deny it, as I don’t know just what all was said. I think I heard someone say they wondered why the defendant didn’t go on the stand and then somebody remarked that that didn’t have nothing to do with the case I don’t know how long before the verdict wa« rendered that happened, but it was a good while. I don’t know whether it was an hour or two or not for it was mentioned more than once.” The court in qualifying the bill says: “I concluded that the jury did not discuss the failure of the defendant to testify, but that defendant did not offer any eyidence to contradict the witnesses and that the court *248 charged the jury'not to consider the matter of the defendant not testifying and when the jury read this part of the charge it was stated by the jury that the jury must not consider such failure of defendant to testify. As to the witness Fuller’s reputation, the evidence taken on the motion for a new trial is referred to and I concluded that the verdict of the jury was not affected by same.” Further detail of this evidence, in the mind of hie writer, would be unnecessary. There seems to be two rules with reference to defendant’s • failure to testify: one is what is termed a bare allusion in the jury room to defendant’s failure to testify when immediately suppressed will not of itself cause the judgment of conviction to be set aside. These cases will be found collated in Mr. Branch’s Ann. Renal Code, on page 293. The second rule is that an allusion to or discussion of defendant’s failure to testify is error, and an indirect reference to defendant’s failure to testify is as much error as a direct reference to such failure. These cases will be found collated on page 209 in section 374 of Branch’s Ann. Renal Code. See also Huddleston v. State, 70 Texas Crim. Rep., 260; Walling v. State, 59 Texas Crim. Rep., 279, 128 S. W. Rep., 624; Richards v. State, 59 Texas Crim. Rep., 203; Stone v. State, 182 S. W. Rep., 193; Buessing v. State, 63 S. W. Rep., 318. In Huddleston v. State, supra, it is said that persistence of one or more jurors in bringing up the subject of defendant’s failure to. testify makes a mere allusion or reference thereto become a matter of importance. The quotations from the testimony on motion for new trial we think presents this matter clearly and sufficiently strong to show that before they agreed on the punishment and before they agreed as to whether defendant was guilty of rape or incest, that his failure to testify was discussed by the jury both before and after reading the charge. The State evidently by its examination and cross-examination as developed by the quoted testimony undertook to show that because when the matter was mentioned some of the jurors would say that we must not consider that; that, therefore, it was not considered; at least it was not sufficient to require a reversal -of the judgment. There is too strong an indication here that this allusion to and discussion of defendant’s failure to testify was attended by too many cautions not to consider it, to say that this would come within the rule of bare allusion. It would not do to hold that where jurors discussed the failure of a defendant to testify that because other jurors cautioned that 'they could not consider it and this continued through their retirement, that this would relieve the case of prejudicial misconduct of the jury. This would amount to practically a travesty on the statute. As to the other question of misconduct, that is, the use of testimony not delivered before the jury in regard to the good reputation of Mr. Fuller, this ought not to raise a question of why this verdict ought not to stand. The rule is settled in Texas, as we understand it, that a new trial will be granted where the jury after being retired to deliberate upon the case has received other testimony, and when a juror testifies *249 to his fellow jurors during their deliberations and vouches for the credibility of a material State’s witness the jury has received other testimony. Tate v. State, 38 Texas Crim. Rep., 261; Blalock v. State, 62 S. W. Rep., 571; Battles v. State, 53 Texas Crim. Rep., 202; Key v. State, 72 Texas Crim. Rep., 129. 161 S. W. Rep., 130; Knight v. State, 66 Texas Crim. Rep., 335, 147 S. W. Rep., 368; Williamson v. State, 63 Texas Crim. Rep., 132; Horn v. State, 50 Texas Crim. Rep., 404, 97 S. W. Rep., 822; Branch’s Ann. Penal Code, p. 292. It seems to be practically conceded in this record that Mr. Fuller Became the subject of discussion. ' There was no attack made upon Mr. Fuller’s testimony by the defendant, and, therefore, none offered to sustain it by the State. This was a matter that came up only in the jury room and not on the trial. Several of the witnesses stated in the jury room to their fellow jurors that he was an honest, law-abiding man and a truthful, straight man. Under the authorities cited this was clearly receiving testimony after their retirement which was not before them on the trial. That these matters affected the verdict in this case is not questioned, as the writer understands this record. Three or four of the jurors were for incest with a punishment of ten years. By reason of these matters of misconduct of receiving other testimony and comment on the failure of defendant to testify these jurors changed their views and consented to a verdict of twelve years for rape. -It was a very crucial question, conceding the State’s testimony to be true that defendant was the man in the room with the girl at the hotel, that it was incest and not rape. Defendant, of course, was fairly interested in the verdict as much as the State. This testimony did change at least three of the jurors from incest and.ten years to a conviction for rape with twelve years. That these jurors were affected by this testimony unfavorably to the defendant is not the subject of doubt. This was not only injurious but shown to be affirmatively so by the testimony. The law has made a distinction between rape and incest and the punishment attached to the two offenses. Under the incest view appellant could not have had in excess of ten years.. Under the rape view of the case he could have had assessed against him a punishment far in excess of twelve years, but the jury did award him two years higher for rape than some of the jurors were willing to give him had they remained of the opinion it was incest. This is shown affirmatively to be true. It did increase the offense and the punishment with them, and they testified in substance and one of them expressly that it had a bearing on his verdict and changed him as it did the other two from incest to rape. For the reasons indicated the judgment is reversed and the cause remanded. Reversed and remanded.