Franklin v. State, 35064
| Decision Date | 21 November 1962 |
| Docket Number | No. 35064,35064 |
| Citation | 363 S.W.2d 137 |
| Parties | Mae Frances FRANKLIN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Theo. R. Kirchheimer, Houston, for appellant.
Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for unlawfully carrying a pistol; the punishment, confinement in jail for ninety days.
The record is before us without a statement of facts
Appellant's sole contention on appeal, presented by formal bill of exception, is that the trial court committed reversible error in receiving from the jury a question asking for further instructions as to a matter of law and in replying to such request in writing without bringing the jury into the courtroom and making such reply in open court.
The bill ef exception certifies that after the jury had retired to consider their verdict they sent a written interrogatory to the court by the bailiff, in which they asked the following question:
The question was delivered to the judge in the courtroom and, after showing it to counsel for the state and the appellant, the judge suggested that it be answered as follows:
No objection was made by counsel for the state or the appellant to the suggested answer, and such answer was then written out by the court and delivered by the bailiff to the jury in the jury room, the jury never appearing in open court.
It is further certified in the bill that such proceedings were held within the hearing of appellant, who was seated at the counsel table in the courtroom.
Appellant insists that the court's answer was an additional instruction to the jury and, not having been given in open court and in the presence of appellant, as provided by Articles 676, 677, and 679, of Vernon's Annotated Code of Criminal Procedure, requires a reversal of the conviction.
Art. 676 provides:
'When the jury wish to communicate with the court, they shall so notify the sheriff, who shall inform the court thereof; and they may be brought before the court, and through their foreman shall state to the court verbally or in writing, what they desire to communicate.'
Art. 677 reads as follows:
Art. 679 provides:
'In felony but not in misdemeanor cases, the defendant shall be present in the court when any such proceeding is had as mentioned in the * * * preceding articles, and his counsel shall also be called.'
It has been the uniform holding of this court that the giving of additional...
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Smith v. State
...error. Brown v. State, 505 S.W.2d 850 (Tex.Cr.App.1974); Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967); Franklin v. State, 363 S.W.2d 137 (Tex.Cr.App.1963). However, it is incumbent upon a defendant to bring the easily correctable error to the judge's attention by objection or formal b......
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Allaben v. State
...mentioned statutes which does not amount to additional instructions by the Court, does not constitute reversible error. Franklin v. State, Tex.Cr.App., 363 S.W.2d 137. Attention is called to the fact that most of the cases cited above dealt with situations where the Court's answer to the ju......
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Arrevalo v. State, 45629
...with the statutes, which does not amount to additional instructions by the court, does not constitute reversible error. Franklin v. State, Tex.Cr.App., 363 S.W.2d 137; Allaben v. State, Tex.Cr.App., 418 S.W.2d The communication by the court to the jury, when they were excused for the evenin......
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Smith v. State, 04-81-00399-CR
...commentary (Vernon 1981). In an interpretation of old articles 676 and 677, the Texas Court of Criminal Appeals in Franklin v. State, 363 S.W.2d 137, 138 (Tex.Cr.App.1962), held that a communication between the court and the jury, although not made in compliance with the provisions of the s......