1. Change of Venue — Affidavits of Compurgators. — On an application for a change of venue, where the State had filed controverting affidavits attacking the means of knowledge of the compurgators, and defendant offered and proposed to file additional affidavits of other compurgators in support of his motion, which was refused because too late, and defendant then asked leave to file second motion for change of venue, attaching the affidavits of the new compurgators, and this application and affidavits being also stricken out on motion of State counsel, upon the ground that issue had already been joined upon the original motion for change of venue: Held, that inasmuch as there was a full investigation of the question whether appellant could obtain a fair and impartial trial in the county, and upon which investigation the said compurgators testified, no possible injury to appellant is made to appear from striking out these supporting affidavits, filed after issue joined.
2. Biased and Prejudiced Juror. — On motion for a new trial, based upon bias and prejudice of a juror, where it was shown, by the testimony of two witnesses, that some months before the trial the juror and defendant had had a difficulty, after which they heard the juror abuse the defendant, and state in effect, that "defendant had a case in court, and that he hoped that when the son-of-a-bitch was tried he could get on the jury, and if he did he would send him (defendant) to the penitentiary." And it further appearing that these statements of the juror were unknown to defendant, and that he did not know that the juror harbored ill feeling toward him on account of their old difficulty until after the trial: Held, that the new trial should have been granted on account of the bias and prejudice of the juror.
SIMKINS, JUDGE.
Appellant was convicted of embezzlement, and his punishment assessed at two years in the penitentiary, from which judgment he appeals.
1. Appellant complains that the court erred in striking out the supporting affidavits of P.P. Anderson, J.A. Castle, and K.M. Barrett, as compurgators, and in overruling the motion for change of venue. We can not see any possible injury to appellant from striking out the supporting affidavits filed by appellant after issue joined. There was a full investigation of the question whether appellant could obtain a fair and impartial trial in Franklin County, in which the said witnesses could and did testify. We do not think the showing for a change of venue was sufficient, and the district judge did not err in overruling it. Myer's case, 7 Texas Cr. App., 640; Cox's case, 8 Texas Cr. App., 254; Willson's Crim. Stats., sec. 2212.
2. The serious question arises from the fact that the juror Tobe Law sat in this case. After the verdict, appellant moved for a new trial, upon the ground that a prejudiced juror sat in the cause, and was influenced by his prejudice in his verdict. He stated further, that he had a dispute with Law, in the presence of Blocker and Ryburn, but never knew that Law had any ill feeling against him, or had made the statements imputed to him, which were made August 14, 1892, prior to the trial on November 24, 1892. It was shown by Blocker and Ryburn, that the juror Law, on the 14th of August, had a quarrel with Long, both parties drinking; and, after Long had left, he remarked that he (Long) had a case in court, and he (Law) hoped that when the son-of-a-bitch was tried he (Law) could get on the jury; that he, would send him to the penitentiary. The juror denied the prejudice, but was unable to deny the charge. He stated that he had no recollection of saying so, but remembers he apologized to Long sometime after for language he had used, and Long told him no apology was necessary, as both were drunk, and shook hands with him. Long, however was not aware of the statements made by said juror in his absence, and the juror qualified himself as being without bias for or against the defendant on his voir dire. Another witness also spoke of some disparaging remarks made of Long by said juror, to the effect that he would not allow him to sleep at his house, but would treat him as a negro. The juror denies any recollection of this conversation also, stating that he was drinking on both occasions referred to, and may have used the language. In further answer, the State proved that the juror's conduct in the jury room manifested no prejudice against appellant.
The affidavits offered in support of the motion for a new trial show with reasonable certainty that one of the jurors who tried this case was not a qualified juror; that apparently, without even having formed a conclusion as to appellant's guilt, he announced his intention of sending him to the penitentiary if he sat on the case, presumably whether he was guilty or innocent. By some coincidence he did get on the jury, and voted as he had threatened to do. His denial of the charges is by no means satisfactory. He remembers the occasion, repeats verbatim the conversation he had with Long, but can not remember a word of the conversation with Ryburn and Blocker, immediately afterwards. Remembers their going home, and Ryburn turning back, yet can not remember his repeated threats of sending appellant to the penitentiary, made to Blocker. He remembers the apology, three weeks afterwards, he made to appellant, yet forgets the conversation with Brice Collins. If such conversations occurred, the Juror should not have sat in the cause, and the court should have granted a new trial, or else held, that because appellant is probably guilty, he was not entitled to an impartial jury. We think it is very probable that the threats imputed to the juror were made by him, and the court erred in not granting a new trial. Gilleland's case, 44 Tex. 364; Graham's case, 28 Texas Cr. App., 584. We find no error in any other ruling. The judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.