Adams v. State

• Decision Date: 23 November 1921
• Docket Number: (No. 6387.)
• Citation: 243 S.W. 474
• Parties: ADAMS v. STATE.
• Court: Texas Court of Criminal Appeals

243 S.W. 474

ADAMS v. STATE.

(No. 6387.)

Court of Criminal Appeals of Texas.

November 23, 1921.

State's Rehearing Granted January 11, 1922.

Appellant's Rehearing Granted June 21, 1922.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

O. Adams was convicted of sodomy, and he appeals. Reversed and remanded.

C. E. & A. E. Heidingsfelder, of Houston, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for sodomy. Punishment fixed at confinement in the penitentiary for a period of 15 years.

On hearing the motion for new trial charging misconduct of the jury, the evidence disclosed, without conflict, that one of the jurors, before his selection, had knowledge of the fact that the appellant, on a former occasion, had been convicted of a like offense. It was also shown that after he was selected he communicated this fact to other members of the jury, but that this was not done until after the jury had reached the conclusion concerning the verdict they would render. It was also disclosed that neither appellant nor his counsel were aware of this knowledge on the part of the juror; that the previous conviction was in a different jurisdiction; and that on his voir dire inquiry was made touching his knowledge of the parties and his knowledge of any fact which would militate against his impartial action in deciding the case. He disclaimed any such knowledge; suppressed the facts which he knew, and misled the appellant. If he believed that the information in his possession would not affect his verdict, he should have disclosed the facts in his possession and left the appellant in a position that he might decide whether he would excuse the juror by peremptory challenges.

The ground for the motion for new trial is that by the juror's conduct the appellant was deprived of a trial by an impartial jury. Such a jury in felony cases is guaranteed by the Constitution. See Harris' Texas Const. art. 1, § 10. An impartial jury consists of 12 impartial jurors. Const. art. 5, § 13; Huebner v. State, 3 Tex. App. 458; Lott v. State, 18 Tex. App. 630; Jones v. State, 52 Tex. Cr. R. 303, 106 S. W. 345, 124 Am. St. Rep. 1097.

The Legislature is commanded to pass laws making effective the provision of the Constitution that the right of trial by jury shall remain inviolate. Following the procedure enacted in obedience to this constitutional provision, the appellant examined the juror on his voir dire under the eye of the court and under oath, and the juror failed to disclose the knowledge which he then possessed that the appellant, in a different city, on a former occasion, had been convicted of an offense like that for which he was to be tried. It has often been held that, when an impartial juror or biased juror or prejudiced juror is selected without fault or lack of diligence on the part of the accused or his counsel, they acting in good faith upon his responses to questions upon his voir dire and having no knowledge of their inaccuracy, there exists good ground for a new trial. Long v. State, 10 Tex. App. 198; Sewell v. State, 15 Tex. App. 62; Graham v. State, 28 Tex. App. 582, 13 S. W. 1010; McWilliams v. State, 32 Tex. Cr. R. 269, 22 S. W. 970.

We think the juror's conduct characterizes him as other than an impartial juror. Long v. State, 32 Tex. Cr. R. 145, 22 S. W. 409; Long v. State, 10 Tex. App. 198; Hughes v. State (Tex. Cr. App.) 60 S. W. 563; Hopkins v. State (Tex. Cr. App.) 68 S. W. 986.

We think that the record reveals that the appellant was without laches or lack of diligence and was misled by the response of the juror into selecting him, and that, he not being an impartial juror, it was incumbent upon the trial court to grant the motion for new trial. The jury acts as a unit, and the disqualification or prejudice of one of its members is sufficient, upon motion for new trial, to vitiate the verdict. McWilliams v. State, 32 Tex. Cr. R. 269, 22 S. W. 970; Long v. State, 32 Tex. Cr. R. 145, 22 S. W. 409; Graham v. State, 28 Tex. App. 583, 13 S. W. 1010; Ruling Case Law, vol. 16, p. 312, § 120. The fault was not cured by the verdict, which assessed against the appellant the extreme penalty allowed by law for the offense with which he was charged.

The judgment is reversed, and the cause remanded.

On State's Motion for Rehearing.

HAWKINS, J.

No statement of facts produced on the trial accompanied the record, and our former opinion was based entirely upon a bill of exceptions to what might be termed the suppression of knowledge or information of one of the jurors as to a former conviction of appellant for a similar offense. This was developed by testimony on motion for new trial. The bill, as it appears in the record, after formal parts, continues as follows:

"In the selection of the jury counsel for defendant asked the jury panel several questions, namely: `Are either of you gentlemen acquainted with the prosecuting witness, his father, or the defendant.' No answer was made thereto, and their silence was accepted as negative. They were then asked `if they knew any cause or reason why they could not serve or didn't want to serve as a juror in the case or knew anything about the case as the defendant wanted a fair and impartial jury to try his case and that he was charged with the offense of sodomy.' There was no answer made to this question, and the negative was also assumed by counsel for the defense. A jury was then selected, impaneled, and sworn to try the case, and on the trial of the case the defendant was found guilty and punishment assessed at 15 years in the penitentiary. After the trial defendant through his counsel claimed that he learned of certain improper conduct on the part of the jury all of which is set out in his motion for new trial in this cause, and reference thereto is here now made. The substance is that one of the jurors — i. e., Sibley — made certain statements in the jury room relative to the defendant having been convicted for a similar offense as the one upon which he is being tried in Galveston, Tex., and the defendant prayed for a new trial by reason thereof. To this motion of the defendant the state filed a controversion thereby joining issue with the defendant on that proposition, and the jury who tried the case, having been summoned as witnesses, appeared in court on, to wit, the 16th day of April, 1921, and the following testimony was had."

Here followed the entire testimony taken on the hearing of the motion for new trial, and the bill concluded as follows:

"After the testimony was all in, the court overruled defendant's motion for new trial, and to which action of the court in so doing defendant reserved his bill of exception thereto and here now tenders this his bill of exception No. 1, and asks that same be filed, approved, and by this court ordered recorded and made and become a part of the record in this case.

"Approved and ordered filed this 28th day of April, 1921.

                                    C. W. Robinson, Judge."
                

It will be seen from the foregoing statement that the testimony appeared to be a part of the bill, properly verified by the trial judge, and as such was given consideration. The state has filed a motion for rehearing, averring that the testimony taken on the hearing of the motion for new trial was no part of the original bill of exceptions, but was inserted by the clerk in preparing the record to make it so appear; that the statement of facts produced on the hearing does not show to have been agreed to by counsel or approved by the trial judge, and, not being properly incorporated in the bill, should be disregarded. On proper motion by the state the original bill as filed in the trial court has been sent to this court and is now before us. It is some trouble to describe it accurately. It consists of two pages of typewritten matter (with some pen interlineations). It is an exact copy of the bill as hereinbefore set out down to the point where, as copied in the record, the evidence appears; but in the original bill at this point appears the following, written with a pen, and inclosed in brackets: "[The testimony produced upon the trial is to be taken up here.]" Then follows the conclusion of the bill as hereinbefore set out, and signed by the trial judge. These two sheets of typewritten paper are attached by a pin or clip to the inside of the front cover of what purports to be the testimony heard on the motion for new trial. It consists of 28 pages and concludes with the certificate of the court reporter that it is the testimony taken on the motion for new trial. It is nowhere signed by counsel for either the state or appellant, nor is it approved by the trial judge, unless the matters above set out make it a part of the bill of exceptions. The two sheets of paper bear file mark of "Apr. 28th, 21," there also appears upon the cover to the evidence the same file mark, "Apr. 28th, 21." The bill of exception nowhere refers to the...