1. Continuance. — Where facts proposed to be proved by the absent witness, as stated in the application for continuance, are directly contradicted and shown to be untrue by written matter contained in the record in the case, held, that the application for continuance was properly overruled.
2. Jury — Conversing with Juror After He has been Empanelled. On a trial for murder, after the jury had been empanelled, one of the jurors was asked by an outsider if he, the outsider, should inform the juror's wife that he, the juror, had been selected on the jury. Held, that if it be conceded that this was such conversation as comes within the purview of article 690 of the Code of Criminal Procedure, still it would not constitute reversible error, inasmuch as it clearly appears that it could not have tended, in the slightest manner, to have affected the mind of the juror with regard to the case.
3. Same — Now Trial. — In order to entitle a party to a new trial, or to a reversal of the case on appeal, upon the ground that a juror in the case has conversed with an outsider, it must be made to appear that by reason of such conversation injustice was probably done the accused, or was of such a nature as was calculated to result in probable harm to the accused.
4. Practice — Jury — Postponement on Account of Absent Venireman. — Where, on the call of the special venire, one of the jurors was found to be absent, and defendant requested a postponement until said juror could be brought into court, which was refused, and an attachment was issued for the absent juror, and the selection of the jury proceeded with; and subsequently the absent juror made his appearance, and was peremptorily challenged by defendant: Held, no error is suggested of which defendant could complain.
5. Same — Oath to Sheriff and Deputies who are to Summon Talesmen. — Where it appeared that the oath prescribed by statute, article 3056, Revised Statutes, had been administered to the sheriff before any talesmen had been summoned in the case, held, that it was unnecessary that the oath should be taken again, when it became necessary to summon additional talesmen; and especially so, where it is made to appear that before summoning said talesmen the sheriff was cautioned, as provided by article 615, Code of Criminal Procedure, with regard to his duty in summoning them. Following Habel v. The State, 28 Texas Criminal Appeals, 588.
6. Examination of Venireman — Defendant's Right to do so in Person. — Where a venireman, on his voir dire, has been fully examined by defendant's counsel, and defendant in person had also been permitted to ask him numerous questions, held, that the court did not err in prohibiting him from further asking questions wholly irrelevant and impertinent, and directing that the further examination should be conducted by his counsel.
7. Arraignment. — Usually a rearraignment under the same indictment is unnecessary, but there is no law against it, and it is difficult to see how a rearraignment could operate as error.
8. Defendant's Right to Interrogate Witness. — Where a witness has already testified very fully in reply to interrogatories propounded by both the defendant in person as well as his counsel, it is not error for the court to refuse to permit defendant to further repeat the same questions to the same witness, nor require him to confer with his counsel as to further examination of witness. 9. Evidence — Voluntary Statement of Accused at Examining Trial. — A voluntary statement made by the defendant at his examining trial, after he had been properly warned and cautioned as required by the statute, is admissible on his final trial as evidence against him. And its admissibility is not affected by the fact that at the time it was made he expressed a desire to waive a further examination of his case.
10. New Trial — Prejudice of Juror. — Where one of the grounds of the motion for new trial was the alleged bias and prejudice of one of the jurors Who sat in the case, which was controverted by the State, and in his affidavit the juror denounced the imputed statement in most emphatic language, as untrue and maliciously false, and the issue of fact raised was decided by the lower court adversely to defendant: Held, that the ruling will not be interfered with. Washburne v. The State, 31 Texas Criminal Reports, 352, distinguished as to this point.
11. Insanity. — Where the issue of insanity has been fully investigated and submitted to the jury, in accordance with settled law, their verdict will not be disturbed where the evidence sustains the verdict.
12. Murder of the First Degree. — See facts stated upon which the court affirms a judgment of conviction for murder of the first degree, with the death penalty.
DAVIDSON, JUDGE.
Appellant prosecutes this appeal from a conviction of murder in the first degree, in which the penalty of death was assessed.
1. The court did not err in refusing the application for a continuance for the witness Gentry. It is not true that this witness would have testified as set forth in the application, which is made fully to appear by the record.
2. Pending the empanelling of the jury, one Hill asked the juror Gaston if he should inform Mrs. Gaston that he had been selected as a juror in the case. Gaston only heard a part of the remark, and did not enter into conversation with Hill. Conceding this remark to be a conversation with the juror, within the purview of article 690 of the Code of Criminal Procedure, it clearly could not have tended in the slightest manner whatever to affect his mind one way or the other in regard to the case. Remarks to or conversations with jurors do not necessarily constitute ground for granting a new trial. In order to entitle a party to a new trial under such circumstances, it must be made to appear that by reason of such conversation injustice was probably done him. It must be such as was calculated to produce a more unfavorable impression upon the mind of the juror than that made by the evidence adduced on the trial, or it must be of such a nature as was calculated to result in probable harm to the accused, in order to constitute a ground for a new trial, or in case of its refusal, to authorize a reversal on appeal. Nance v. The State, 21 Texas Cr. App., 457; Bailey v. The State, 26 Texas Cr. App., 706; March v. The State, 44 Tex. 64.
3. When his name was reached on the list, one of the veniremen failed to respond, and defendant requested a postponement of the trial until the juror could be brought into court. This was refused, attachment issued, and the call of the veniremen proceeded. Subsequently the juror made his appearance, and was peremptorily, challenged by defendant. There was no error in this ruling of the court. Hudson v. The State, 28 Texas Cr. App., 323; Habel v. The State, 28 Texas Cr. App., 588; Suit v. The State, 30 Texas Cr. App., 319.
4. When the special venire had been exhausted, the sheriff was sworn and instructed in relation to his duties in selecting and summoning talesmen. Finally, after exhausting two lists of talesmen, twenty-five additional talesmen were ordered and summoned. Upon the return of this list, the defendant "declined to proceed with the case, on the ground that they were not legally summoned, in that the officer had not been sworn according to law." The oath had been administered prior to summoning the first list of talesmen. He had, however, been duly cautioned by the court as to his duty in each instance before summoning additional jurors. It is "not necessary to have the oath repeated every time new or additional talesmen are to be summoned." Habel v. State, 28 Texas Cr. App., 588.
5. The discretion of the court was not abused, nor the rights of defendant infringed, in refusing him permission to interrogate the juror under the circumstances set forth in the bill of exceptions as qualified by the court. The discretion was not exercised until the defendant resorted to irrelevant and impertinent questions.
6. On a former trial, defendant, having been arraigned, pleaded guilty, and his punishment was assessed at death. His insanity at the time of the plea was subsequently made one of the grounds of his motion for a new trial. When the case was again called for trial, he desired to enter a plea of not guilty, and for this purpose was again arraigned. Objection was urged that he could be only once arraigned. We have not been cited to any authority in support of this proposition, nor have any reasons been suggested why it should be held to be correct. We are of opinion that the position is not a sound one. Usually, a rearraignment under the same indictment might be unnecessary, yet it would be difficult to see how it could or should operate as error. Under the facts of this case, the court acted with due prudence and caution in causing the second arraignment.
7. The court did not err in refusing the defendant permission to interrogate Dr. Wallace as to matters shown by the reserved exception. This witness had testified very fully in relation to the matters inquired about, in reply to questions of defendant in person, as well as interrogatories propounded by his counsel.
8. The voluntary statement made by defendant was properly admitted. It is shown by the statement itself, the evidence of witnesses, and the defendant's testimony, that he was properly warned and cautioned, as required by the statute, before making it. The fact that he expressed a desire to waive examination would not affect the admissibility of the evidence, nor operate as a reason for its exclusion. Salas v. The State, 31 Tex. Crim. 485 [ 31 Tex. Crim. 485].
9. The alleged prejudice of the juror Schlissinger is made a ground of the motion for a new trial, and is supported by the affidavits of McFarland and Williams. By these affidavits it is shown that the juror stated that defendant "ought to be hung" and "ought to be burned." This was controverted by the State. In his affidavit the juror denounced the imputed statement in most emphatic language as untrue and maliciously false. The issue of fact thus found was decided adversely to defendant. Willson's Crim. Stats., secs. 2558, 2560. The rule laid down in Washburn's case, 31 Tex.Crim. Rep.[ 31 Tex. Crim. 352], is correct, but is wholly inapplicable to the facts in this case, for in that case the statement imputed to the juror was not denied.
10. The question of insanity was fully submitted to the jury, in accordance with the settled law of this State. The jury decided this issue adversely to defendant, and we see no reason to disturb their verdict. Motives for the deed are clearly shown. The judgment is affirmed.
Affirmed.
Judges all present and concurring.