Dunn v. State

• Decision Date: 12 April 1922
• Docket Number: (No. 6353.)
• Parties: DUNN v. STATE.
• Court: Texas Court of Criminal Appeals

242 S.W. 1049

DUNN v. STATE.

(No. 6353.)

Court of Criminal Appeals of Texas.

April 12, 1922.

Rehearing Denied June 23, 1922.

Appeal from District Court, Coryell County; J. B. Keith, Judge.

Tom Dunn was convicted of murder, and he appeals. Affirmed.

Clay McClellan, of Gatesville, and A. R. Eidson, of Hamilton, for appellant.

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

HAWKINS, J.

Conviction was for murder, punishment being assessed at 65 years' confinement in the penitentiary.

This case has been before the court on two former occasions; opinions will be found reported in 85 Tex. Cr. R. 299, 212 S. W. 511, and 88 Tex. Cr. R. 21, 224 S. W. 893.

When the case was called for the instant trial appellant interposed a plea of former jeopardy, in which he substantially avers that he was put upon trial in this case on the 26th of January, 1920. He alleges that a jury was impaneled and sworn, after which his plea proceeds as follows:

"Thereupon the court announced that it stood adjourned until 1:30 o'clock p. m., and directed all of the parties to be in court at that time. That, before the jury left the courtroom, one of the jurors, viz. Paul Cross, stated to the court that he did not want to serve on the jury; that he had an excuse. The court asked him what his excuse was, and he said he had a sick child, and the court told him that he should have interposed his excuse at the time the court called for excuses from the jurors, and that it was too late now for the court to entertain his excuse, and the court declined to hear the excuse of the juror or to entertain the same, and directed the sheriff to take charge of the jury and have them back in court at 1:30 p. m. When the court reconvened at 1:30 p. m. a deputy sheriff who was in charge of the jury announced to the court that he had received a telephone message informing him that the juror Cross had a sick child, and the juror wanted to be excused. The court asked the attorneys what they wanted to do about the matter, and the attorneys for the defendant said that they were willing to excuse the juror. The defendant did not say anything, and was not asked if he consented for the juror to be excused or not. The court conducted no investigation and made no inquiry in reference to the seriousness of the illness of the child except to hear what the deputy sheriff had to say about the matter, and excused the juror Cross, and the trial proceeded before the 11 remaining jurors. The juror Cross was himself neither sick nor otherwise incapacitated, but was able to proceed with the trial of the case. That after the juror Cross was excused the district attorney and the lawyers for the defendant tried to agree on another juror, but were unable to do so, and then the parties agreed to try the case before the 11 remaining jurors, and the case was tried before said 11 remaining jurors."

All averments were made necessary to show the trial in the instant case was upon the same indictment and for the same offense as that for which he was tried in January, 1920. No answer was filed by the state joining issue with appellant on the facts set up in his plea but a general demurrer thereto was filed, and the trial judge refused to entertain the plea of jeopardy, evidently justifying his action from a knowledge of the records in the case, for he explains the bill by certifying that the case was tried, appellant convicted, that the case was appealed and reversed, and then stood again for trial.

Under the authority of Hipple v. State, 80 Tex. Cr. R. 531, 191 S. W. 1150, L. R. A. 1917D, 1141, it may be conceded that the plea of jeopardy was good as against a general exception. It is the general rule in this state, well supported by authority, that a plea of jeopardy, being sufficient in law, raises an issue of fact which should be submitted to the jury for its determination. Appellant contends that he has brought himself within that rule, and that the court should have submitted his plea of jeopardy in the instant trial. His contention should be sustained unless the record shows this as an exception to the rule. If facts exist disclosed from the record of the court trying this case which, if shown by the state in answer to the plea of jeopardy, would have authorized the court to instruct the jury that the plea should not be considered by them, then would the trial judge have a right to take judicial knowledge of those matters so disclosed by the records of his own court which would have that effect? We are not without authority on the proposition that, even relative to a plea of jeopardy, the trial court may take judicial knowledge of those things disclosed by the record of his own court. Miller v. State (No. 6287) 242 S. W. 1040 (opinion delivered February 22, 1922, and not yet [officially] reported) is authority for that proposition, and Johnson v. State, 29 Ark. 31, 21 Am. Rep. 154; State v. Bowen, 16 Kan. 475, and the other authorities cited in the Miller opinion also support it. See, also, State v. White, 71 Kan. 356, 80 Pac. 589, also reported in 6 Ann. Cas. 132, and authorities collated under notes in last citation. In Woodward v. State, 42 Tex. Cr. R. 188, 58 S. W. 135, the question was raised that the plea of former jeopardy interposed was not sufficient because it failed to set out the indictment, verdict and judgment in full. In passing upon that question this court used the following language:

"It is not necessary in this case that the plea set up the indictment, verdict, and judgment in full, as the court must take judicial knowledge of the orders and decrees entered in its own court; and especially is this true when those orders and decrees were made in the case then on trial."

Assuming this to be a correct proposition of law, and that the court in the instant case could look to its own records, of what facts could the court take judicial knowledge? Appellant's plea asserts that after the juror in question was excused, "the parties" agreed to continue the trial with 11 jurors. The trial judge knew from the records of his court that such trial proceeded and resulted in the conviction of appellant; that an appeal had been taken from such judgment of conviction; that the judgment had been reversed and the cause remanded for a new trial, and was then upon call in obedience to the order of this court. We have a right to look to the records of our own court to fix the identity of the cases, and we find from an inspection of the record in the case of Dunn v. State, reported in 88 Tex. Cr. R., at page 21, 224 S. W. 893, that the numbers are the same, and that it is the identical case now before us, and was reversed and remanded because the same appeared to have been tried before 11 jurors. The opinion recites that "one of the jurors was excused with the consent of appellant." When we look to the bill of exceptions in that record we find the error assigned based upon the excuse of the identical juror named in appellant's plea of former jeopardy. There is no question about the correctness of the opinion reversing the case upon that trial, because, even with defendant's consent, a trial cannot be had in a felony case with less than 12 jurors, but we may look to the record in that case in connection with the instant bill of exception in order to determine the action of the trial judge in not submitting the plea of jeopardy.

That the plea of jeopardy is a personal privilege, and can be waived by accused, is well established. See 16 Corpus Juris, § 489, and notes under decisions in 6 Ann. Cas. 132. This rule has been recognized many times in this state where juries have been discharged by agreement of accused on trial, and it is not necessary to cite further authority upon this proposition. Jeopardy attached in the instant case when the jury was impaneled and appellant pleaded to the indictment. Jeopardy was as complete at the time the juror Cross was excused as when the plea was interposed by appellant upon the call of the case for the instant trial. After the juror was excused it appears from the plea itself that an effort was made to agree upon another juror, and, having failed in this, that "the parties" agreed to proceed with the trial before 11 jurors. Appellant was present and cognizant of these proceedings, and was evidently taking his chances upon an acquittal at the hands of the eleven jurors, relying, doubtless, upon article 20, C. C. P., that a verdict of acquittal, though irregular, would protect him, or that the state, having agreed to proceed with the trial with 11 jurors, would not disregard the agreement, whatever might be the result. Being disappointed at the verdict of the jury he appealed from the judgment of conviction, secured a reversal, and now for the first time seeks to interpose his plea of jeopardy, having remained silent when objection could have been urged to proceeding with the trial after the excuse of the juror Cross. The waiver of jeopardy does not have to be direct, but may be implied, which is more frequently the case than otherwise. 16 Corpus Juris, § 489; 17 Cyc. 605. We are of opinion that the subsequent proceedings after the juror was excused were a waiver of the question of jeopardy. We cannot escape the conclusion that, if the state had joined issue with appellant on his plea, and the matters recited had been introduced in evidence, it would have been the duty of the court to have instructed the jury to find against appellant. Believing the trial court had a right to take judicial knowledge of the matters disclosed by the records of his own court which would have authorized a peremptory instruction against appellant on his plea of jeopardy, we have been unable to conclude that failure to entertain the plea has in any way resulted harmfully to accused, because the same result would have been reached by either procedure.

In his bill of exception No. 2 appellant sets out in narrative form the testimony of his wife, and at the...