
    VAUGHN v. STATE.
    (No. 9441.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1925.)
    Criminal law &wkey;>863(l), 1163(1) — Judge’s answer to written communication from jury for further instructions held error, and presumably injurious.
    Where jury, after retirement, addressed written communication to court, judge’s answer in writing, without following mandatory provisions of Code Cr. Proc. 1925, art. 677, that jury .must appear before open court in a body for further instructions, and article 679, that in felony case accused shall be present in, court, was error and of nature from which injury is presumed.
    Appeal from District Court, Coleman County; J. O. Woodward, Judge.
    Charlie Yaughn was convicted of forgery, and he appeals.
    Reversed and remanded.
    .W. Marcus Weatherred, of Coleman, for ' appellant. '
    Sam D. Stinson, State’s Atty., of Green-ville, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is forgery; punishment fixed at confinement in the penitentiary for a period of two years.

, The instrument was a check drawn at Santa Anna, Tex., in favor of the Santa Anna Mercantile Company, for $39.50, purporting to bear the signature of A. A. Gordon.

Appellant entered a plea of guilty. He testified, admitting that he passed the check, and that the purported signature was that of a fictitious person. He endeavored to explain his conduct with the statement that he did not intend to defraud; that he did not know that the signing of a fictitious name was contrary to law; that his act was brought about in consequence of a wager with a friend that he could pass such a check, his idea being to demonstrate the correctness of his conclusion and to restore the property acquired. He received a suit of clothes in exchange, for the check. - Later, when taxed with the fraud, he made good the loss by paying for the clothes and for the trouble of the injured party in relation to the matter. ' Appellant was 28 years of age. He was inexperienced in business matters. It was shown by numerous witnesses that he bore a good reputation for truth and veracity, honesty and fair dealing. This was not controverted but was admitted by tbe state. He bad not previously been convicted of a felony. His cross-examination was sucb as tended to discredit the good faith of the explanation of his conduct.

The verdict was returned some 24 hours after the jury had retired. Some time before the decision was reached, a controversy arose concerning the effect of the suspended sentence. The jury for a time were equally divided in the opinion, half of them-favoring a suspended sentence, the others opposing it. The controversy related to the divergency of opinion as to the meaning of the term “good behavior” as contained in the court’s charge — some of the jurors contending that, if the appellant’s sentence was suspended, he could not be rearrested upon the present offense unless he subsequently committed a felony; others contending that a misdemean- or would warrant the cancellatión of the suspension of his sentence. In the course of the debate, some of tbe jurors particularized certain individuals in tbe community wbo bad been accorded a suspended sentence, and bad afterwards committed misdemeanors, and bad engaged in carousals and disorderly conduct, and had not been apprehended, and that the cancellation of the suspension of their sentence had not been undertaken. It was finally decided that the question at issue should he submitted to the court. Accordingly there was addressed to the court á written communication signed by the foreman, reading as follows: “Does it take a felony in order to be taken up under suspended sentence?”

This - was handed to the sheriff by the foreman of the jury and by him delivered to the district judge. Without calling the jury into open court in the presence of-the appellant, the court, over the appellant’s objection, answered the question by sending to the jury by the sheriff a written statement in these words: “Yes; and convicted before taken up.”

■ Upon this subject, we quote from the statutes as follows;

“The jury, after having retired, may ask further instruction of the judge as to any matter of law. For this purpose the jury shall appear before the judge in open court in a body, and through their foreman shall state to the court, verbally or in’ writing, the particular point of law upon which they desire further instruction; and the court shall give such instruction in writing, but no instruction shall be .given except upon the particular point on which it is asked.” Article 677, O. O. P. 1925.
. “In felony but not in misdemeanor cases, the defendant shall be present in the court when any such proceeding is had as mentioned in the three preceding articles, and his counsel shall also be called.” Article 679, C. C. P. 1925.

The above corresponds with articles 754 and 750, Vernon’s Tex. Crim. Stat. 1916 vol. 2. Under the terms of these statutes and the previous interpretation of them, it is essential that the procedure by which additional instructions are requested and* given shall be in open court and in the presence of the accused. Conn v. State, 11 Tex. App. 390; Cowart v. State, 65 Tex. Cr. R. 482, 145 S. W. 341; Booth v. State, 65 Tex. Cr. R. 659, 145 S. W. 923; Osborne v. State, 93 Tex. Cr. R. 54, 245 S. W. 928. It is conceived that these provisions of the statute were intended to give effect to the provision of the Bill of Rights guaranteeing a public trial. At all events, communications between the court and jury touching the law of the ease should be in open court and in the presence of the accused. In bringing before the jury in their retirement instances in which, in the opinion of the jurors, persons who have been accorded the suspended sentence had been guilty of misconduct was, to say the least, of very doubtful propriety. Obviously, there was a failure in the present instance to follow the mandatory provisions of the statutes quoted, in that the additional instructions given to the jury by the court were not in open court; nor were they requested in open court as required 'by law. The request was not made in the presence of the accused, nor was the additional charge given to thq jury in his presence. The error is of a nature from which injury is presumed. In the present record, there are found some facts tending affirmatively to support the presumption of injury and none, so far as we are able to judge, to the contrary.

The judgment is reversed, and the cause remanded. 
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