MORAWITZ v. THE STATE

1. — Bribery — Indictment.

See opinion holding that an indictment charging defendant with accepting a bribe complied with the suggestions made in the opinion of the court on former appeal, and to be sufficient.

Upon a trial for accepting a bribe, there was no error in permitting the reading by the stenographer from his notes the testimony of defendant given during a former trial, after the stenographer had qualified as to the accuracy of the said stenographic notes.

Where upon a trial for accepting a bribe, the jury after they had retired to consider of their verdict, returned into court and propounded the question whether the defendant's testimony could be used as corroborative evidence, and the court instructed them that any testimony before them, other than the testimony of the accomplice or accomplices, that they believed to be true, might be considered by them in corroboration of the testimony of the accomplice, provided the same tended materially to connect defendant with the commission of the offense, there was no error; however, the court's main charge on corroboration is criticised as error, if exception had been made thereto.

Upon trial for accepting a bribe, where the jury after having retired to consider a verdict discussed the former trial and the statement was made among them that defendant had been convicted on a former trial and his punishment fixed at five years, the judgment must be reversed, as such testimony would not have been admissible during the trial, which is the test in matters of this character.

BROOKS, JUDGE.

Appellant was convicted for having accepted a bribe, his punishment being fixed at two years confinement in the penitentiary. This is the second appeal. Morawitz v. State, 46 Texas Crim Rep., 436; 10 Texas Ct. Rep., 558. After the reversal on the former appeal, a new indictment was found. Appellant insists that the new indictment is defective. A close scrutiny shows that it complies with the suggestions made in the opinion on former appeal; and we hold the indictment is sufficient.

Upon this trial, the State introduced the stenographer who took down the testimony on the former trial; and from his stenographic notes he was permitted to reproduce the testimony of appellant. The bill presenting this matter shows that the stenographer qualified as to the accuracy of his notes, and after so qualifying was permitted to read from said stenographic notes the testimony of appellant on the former trial. His testimony was germane, pertinent and highly criminative evidence on this trial. There was no error in permitting the introduction of this evidence.

After the jury retired to consider of their verdict, they returned into court, and propounded the following question: "Can the defendant's testimony be used as corroborative evidence." In answer to said question, the trial court instructed the jury: "Any testimony that is before you, other than the testimony of the accomplice or accomplices, that you believe to be true, may be considered by you in corroboration of the testimony of the accomplice, provided the same tends materially to connect defendant with the commission of the offense." The trial court charged on the law of corroboration in his main charge. Though we do not note any exception by appellant to this charge, however, in our opinion, the charge on corroboration is defective under Bell v. State, 39 Tex.Crim. Rep., and various other authorities? Reverting to the answer given by the trial court to the question of the jury, we see no error therein.

Appellant further insists that the case should be reversed on account of the misconduct of the jury. After the jury retired to consider of their verdict, the statement was made that appellant had been convicted on a former trial, and his punishment fixed at five years in the penitentiary, and some of the jurors stated, three years. This was prior to the jury agreeing upon their verdict. This conduct on the part of the jury is reversible error under the long line of authorities of this court. If the State had attempted in the course of the trial to prove that defendant had been convicted, and five years' punishment assessed against him on the previous trial, and the same had been objected to by appellant, and the court had admitted the testimony, there could be no cavil or question as to the injurious effect of the testimony. This it occurs to us is an accurate test in matters of this character. Appellant should be tried on the evidence adduced on the trial, and not upon the action of a former jury. Nor should the former verdict be used as any species or character of predicate for convicting appellant on this trial.

On account of the misconduct of the jury, the judgment is reversed and the cause remanded.

Reversed and remanded.