Holder v. State
| Decision Date | 08 May 1940 |
| Docket Number | No. 21014.,21014. |
| Citation | 143 S.W.2d 613 |
| Parties | HOLDER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Schleicher County; John F. Sutton, Judge.
Alan Holder was convicted of theft of property over the value of $50, and he appeals.
Affirmed.
John J. Watts, of Crane, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
Appellant received at the hands of a jury a verdict of two years in the penitentiary in punishment for the charged crime of theft of property over the value of fifty dollars.
This case began with a plea of not guilty, and after the testimony was all in it seems that appellant changed such plea to that of guilty, and endeavored to obtain a suspended sentence, leaving such to be the only matter to be determined by the jury.
Bill of exceptions No. 1 complains because of the fact that the State was allowed to prove, over appellant's objections, that one Leffel had lost a saddle by theft on the same night that the seven saddles were stolen, that were the subject of the herein indictment. Without going into a further discussion of this bill, we think an answer thereto lies in the fact that it was not shown who took Mr. Leffel's saddle unless by inference, and that inference came from appellant's own testimony in that he stated upon his cross-examination that he had left eight saddles in Kansas and Oklahoma, whereas he was charged with the theft of only seven saddles. We see no error of importance reflected in this bill.
Bill of exceptions No. 2 complains because of the trial court's failure to sustain a challenge for cause to a certain juror, whose voir dire examination was contended to show that he was prejudiced against a suspended sentence, and upon whom appellant was compelled to exercise a peremptory challenge. The bill does not show that appellant exercised all of his peremptory challenges and was forced to take an unsatisfactory juror by virtue of the court's ruling as to the juror who was thus peremptorily challenged. In the condition in which this bill appears we see no error reflected.
Bill of exceptions No. 3 is concerned with the following remarks of the district attorney in his argument before the jury:
From the record before us it is shown that appellant took four of these stolen saddles and left them with a friend of twenty years' standing in or near Arkansas City, Kansas, and asked this friend to keep them for him (appellant) until he came after them. We think the remarks were a fair comment on the testimony.
Bill of exceptions No. 4 shows the following occurrence:
Appellant's attorney called the appellant to the witness stand with the following statement: "I want to put the defendant on the stand for the purpose only of showing he has never been convicted of a felony in this State or in any other state." Whereupon the appellant took the stand and testified relative to his application for a suspended sentence, and the district attorney then proceeded to question him relative to the matters set forth in the indictment, and eventually obtained an admission on the part of appellant that he had stolen these saddles from the person named in the indictment.
Mr. Branch, in his Penal Code, p. 83, says:
By bill of exceptions No. 5 it is shown that a Mrs. Young and a Mrs. Hicks testified, upon the hearing of the motion for a new trial, that they saw a man by the name of Hill talk to some members of the jury before the verdict was rendered. This is the only fact which the bill of exceptions shows these witnesses testified to. In his motion for new trial appellant alleged that Hill was not a member of the jury, and that such conversation took place prior to the rendition of a verdict.
It has been held, in substance, by this court in the Toussaint case, Toussaint v. State, 92 Tex.Cr.R. 374, 244 S.W. 514, the Davis case, Davis v. State, 123 Tex.Cr.R. 616, 60 S.W.2d 783, the Avirett case, Avirett v. State, 128 Tex.Cr.R. 647, 84 S.W.2d 482, and the Punchard case, Punchard v. State, 124 Tex.Cr.R. 101, 61 S.W.2d 495, that where it is shown that some unauthorized person has communicated with the jury during the trial of the case, that it is incumbent on the State to show that no injury occurred to the defendant.
In Mauney v. State, 85 Tex.Cr.R. 184, 210 S.W. 959, 963, it is said:
Also see Early v. State, 51 Tex.Cr.R. 382, 103 S.W. 868, 123 Am.St.Rep. 889.
According to the record the State made no effort of any kind, and introduced no witnesses to show the lack of injury to appellant by these admitted conversations of Mr. Hill with the jurors.
In consonance with these above holdings, this judgment is reversed and the cause remanded.
On Motion for Rehearing.
At a former day of the term the judgment was reversed, that action being predicated on bill of exception No. 5, which complained that the jury had communicated with some unauthorized person in violation of Art. 671, C.C.P., which, in so far as here applicable, reads as follows:
In a motion for rehearing the State advances the proposition that where an appellant claims that the provisions of the quoted statute are violated he assumes the burden of establishing the truth of the claim, and when he has done so, and not until then, a presumption of injury arises with the burden then resting on the State to rebut such presumption. We entertain no doubt of the soundness of the proposition. In our original opinion occurs the following language: "It has been held, in substance, by this court in the Toussaint case, Toussaint v. State, 92 Tex.Cr.R. 374, 244 S.W. 514, the Davis case, Davis v. State, 123 Tex.Cr.R. 616, 60 S.W.2d 783, the Avirett case, Avirett v. State, 128 Tex.Cr.R. 647, 84 S.W.2d 482, and the Punchard case, Punchard v. State, 124 Tex.Cr.R. 101, 61 S.W.2d 495, that where it is shown that some unauthorized person has communicated with the jury during the trial of the case, that it is incumbent on the State to show that no injury occurred to the defendant."
See, also, Lowe v. State, 88 Tex.Cr.R. 316, 226 S.W. 674; Goode v. State, 123 Tex.Cr.R. 293, 58 S.W.2d 1015; Newton v. State, 114 Tex.Cr.R. 537, 26 S.W.2d 233; Gandy v. State, Tex.Cr.App., 140 S.W.2d 182.
In its motion for rehearing the State further asserts that appellant never discharged the burden resting upon him to show that the jurors, or some of them, violated the terms of Art. 671, C.C.P., hence no presumption of injury arose, and it was not incumbent on the State to offer proof any kind. If the State is correct in the latter proposition we were in error in predicating a reversal upon a violation of the article in question.
It is shown by bill of exception No. 5 that appellant alleged in his motion for new trial...
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