Goldstone v. State

CHRISTIAN, Judge. The offense is theft, a felony; the punishment confinement in the penitentiary for six years. In his amended motion for a new trial, appellant set up misconduct of the jury, averring that the jury alluded to and discussed appellant’s failure to testify. It was stated in the motion that the affidavit of a juror touching the matter of misconduct was attached and made a part of the motion. In another paragraph it was alleged that the jury arrived at the verdict by lot, the procedure followed being specifically set forth. The affidavit of the juror stated, in substance, that during the time he was voting not guilty some of the jurors argued that appellant had not taken the stand and denied his guilt; that this.statement had some influence on him; and that he finally voted for conviction. Again, it was averred in the affidavit that it was agreed to add the number of years voted for and divide by twelve, the quotient to stand as the penalty to be assessed. After filing his amended motion for a new trial, appellant made application to the clerk of the court for process for the jurors who had tried his case. The trial court, upon learning that no affidavits on the part of the jurors had been attached to the motion at the time it was filed, instructed the clerk not to issue the process. Appellant’s attorney intentionally withheld the affidavit of the juror until the motion for new trial was presented to the court. Prior to the hearing on the motion for a new trial, counsel for appellant presented to the court a written motion requesting that the clerk be directed to issue process for the jurors. The motion was overruled. Thereafter, on the last day of the term, a hearing was had on the motion for a new trial. Upon such hearing the court sustained the state’s demurrer to that part of the motion for a new trial wherein it was averred that the jury had alluded to and discussed appellant’s failure to take the stand and testify in his own behalf. The court refused to permit appellant to have the jurors summoned, but permitted appellant to introduce in evidence the affidavit of the juror referred to and the unsworn ex parte statements of other jurors. The state failed to controvert the affidavit and ex parte statements. *444 The bills of exception relating to the action of the court in overruling the motion for a new trial are qualified by the court to the effect that process for the jurors was refused because of the fact that the affidavits of the jurors were not attached to the motion for a new trial, until the day of hearing, and further because there was not sufficient time, after the affidavit was attached, to get service on the jurors, the hearing being had on the last day of the term. The court had the authority to extend the term. The fact alone that the court deemed it impossible to have the jurors brought before him before the time for adjournment of the term .arrived, did not justify a refusal of process for the jurors. Whether appellant forfeited his right to process for the jurors for failure to attach the affidavit of the juror to the- motion .for new trial at the time it was filed is not decided. The affidavit of the juror was received in evidence and considered by the trial court. The matters set forth in said affidavit were not controverted. The affidavit touching misconduct on the part of the jury was appended to the motion for a new trial at the time of a hearing thereon. This affidavit was referred to in the motion and made a part thereof. In our opinion the averments were sufficient, if true, to call for a favorable ruling on the motion, and the state’s demurrer should have been overruled. Under the express provisions of Art. 710, C. C. P., the failure of the accused to testify shall not be taken as a circumstance against him, or alluded to or commented upon by counsel in the cause. It was uncontroverted that the failure of appellant to testify as a witness in his own behalf was discussed by the jury while divided upon the question of guilt and before a verdict was arrived at. Under the decisions, the matter presents reversible error. Hennington v. State, 271 S. W. 624; cases cited under Art. 710, note 40, Vernon’s Code of Criminal Procedure of Texas. Subdivision 3 of Art. 753, C. C. P. provides that a new trial in cases of felony shall be granted where the verdict has been decided by lot, or in any other manner than by fair expression of opinion by the jurors. The only testimony heard by the trial court shows that the provisions of the statute referred to were violated. This being the case, reversible error is manifested. Rosamond v. State, 263 S. W. 1067. Two counts of the indictment were submitted to the jury. In one count it was charged that the property was fraudulently taken from the possession of Joe Optican, and in the other that said property was taken from J. D. Colbert. Optican, the real owner of the property, was not in possession at the time of the theft, he having *445 checked the property to the railroad company for conveyance to Fort Worth. Colbert, an agent of the railroad company, appears to have been in possession at the time the property was stolen. The court submitted both counts to the jury. Appellant timely and properly excepted to the failure of the court to instruct the jury that they could only convict of one count. The jury returned a general verdict, which the court applied to both counts. It is unnecessary for us to determine whether, under the conditions stated, appellant having received more than the minimum penalty, this court could reform the judgment and apply it to one of the counts. If we have a correct understanding of the record, there is no evidence supporting possession in Optican at the time of the theft. If the evidence be the same on another trial the count charging theft from Optican should not be submitted. The judgment is reversed and the cause remanded. Reversed and remanded. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.