
    ABLES v. STATE.
    (No. 9915.)
    (Court of Criminal Appeals of Texas.
    March 10, 1926.)
    Criminal Law &wkey;655(8), 804(3)— Instruction that, if jury separated, verdict would be void, and Judge would grant accused new trial, held reversible error, where verdict was above the ' minimum (Vernon’s Ann-. Code Cr. Proc. • 1916, arts. 740, 787).
    Instruction in prosecution for rape that, if jury separated, their verdict would be void, and judge would grant accused a new trial, was reversible error, where verdict was much above the minimum, in view of Vernon’s Ann. Code Cr. Proc. 1916, art, 740, forbidding verbal instructions in felony case, and article 787, forbidding remarks of judge conveying his opinion of the case.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    True Abies was convicted of rape by carnal knowledge of a female under the age of 18 years, and he appeals.
    Reversed and remanded.
    J. Lee Cearley, of Cisco, for appellant.Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is rape by carnal knowledge of a female under the age of 18 years; punishment fixed at confinement in the penitentiary for a period of 9 years. The prosecutrix testified that the act of intercourse took place; that she was 17% years of age at, the tipie. There was testimony-attacking her previous chaste character and that issue was submitted to the jury.

Bills of exception Nos. 2 and 3, as qualified, Xiresent no error. Bill No. 1 reveals that, after the jury had been impaneled and sworn, and as they were about to retire from the courtroom at noon in custody of the sheriff, the court instructed them thus:

“Gentlemen of the jufy, you must not separate during the. trial of this ease. If you separate, your verdict will be a nullity, and void, and I will have to set it aside, and give the defendant a new trial, and what you have rendered in this case will be void.”

In qualifying the bill, the court said:

“Tie extract quoted in the bill of exceptions from the instructions of the court to the jury immediately after they were impaneled as to their conduct while deliberating on the case is correct in so far as it goes, but in that connection the' jury were first instructed by the court to try the case under the law and the evidence alone, and to be guided thereby alone in arriving-at a verdict, and to permit no communications to influence them from the outside, and to not discuss the case among themselves until they had heard it all including the charge of the court and argument of counsel. And the jury were further instructed in that connection to the effect that, if they should convict the defendant, the verdict would have to be set aside, if the instructions were violated by them.”

In article 740, Vernon’s Tex. Grim. Stat. vol. 2, verbal instructions to the jury in a felony case are forbidden; and, in article 787 of the same volume, remarks of the trial judge which convey to the jury his opinion of the case are also forbidden. The application of these statutes have been under discussion many times. In the recent case of Mahaney v. State, 254 S. W. 949, 95 Tex. Cr. R. 448, the court gave this instruction:

“Gentlemen of the jury, you must not separate, and you must stay together. The Court of Criminal Appeals has held that you must stay together, and, unless you do, the court will have to give a new trial.”

Touching the above, the following remarks were made by this court:

“The inhibition against a verbal charge is not violated by a verbal admonition to the jury to the effect that the law forbids a separation before verdict. It is feared that in the instant case the learned trial judge, in admonishing the jury, made an unhappy choice of language. One with the intelligence and information which is supposed to characterize a juror acceptable to both the state and appellant would know that it was only in case-of a verdict of guilty that a new trial could be granted. The remark of the court that, if they separated, he would have to grant a new trial, was at least susceptible of the interpretation by the jury that, in the opinion of the court, the verdict would be ‘guilty.’ ” Mahaney v. State, supra.

It is believed in the present case that the language of the court used in admonishing the jury against separation is not well chosen and that it may have been construed by the jury as indicative that the trial judgeenter-tained an opinion adverse to the appellant’s case. The verdict was much above the minimum, and, in the light of the evidence in the case, we deem it our duty to order a reversal of the case because of the remarks mentioned. This is in accord with the ruling of this/xrart in Johnson’s Case, 149 S. W. 165, 67 Tex. Cr. R. 441, and we think is in consonance with the letter and spirit of the statutes mentioned.

The judgment is reversed, and the cause remanded. 
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