
    HUGHES v. STATE.
    (No. 4548.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    1. Criminal Law <&wkey;658 — Conduct of Trial Judge.
    In prosecution for murder, it was error for the court, on conclusion of testimony of defendant’s witness, to call the deputy sheriff, who then took the witness to jail.
    2. Criminal Law >@=3865(1) — Conduct of Judge — Statements to Jury.
    It was error for the court, when the jury reported that it stood 11 to 1, but could not agree, to say: “Gentlemen, it seems that you are practically agreed. I will have to send you out again. I would not bo authorized under the law to discharge you just yet.”
    Prendergast, J., dissenting.
    Appeal from District 'Court, Wichita County; Wm. N. Bonner, Judge.
    Harvey Hughes was convicted of murder, and he appeals.
    Reversed and remanded.
    Martin & Oneal, of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at 12 years’ and 6 months’ confinement in the penitentiary.

There were two theories by the facts: The state’s contention is that the deceased was in the negro apartment of a saloon, taking a drink, and appellant came in and suddenly stabbed him in the heart and killed Mm. There had been differences between them, and deceased had made threats to take the life of appellant. Appellant’s theory of the case was that deceased was standing at the bar with an opened knife in his hand, and when he entered the room deceased undertook to cut him; that he ran out of the door, followed by deceased until they ran for some distance, when he turned upon deceased with his knife and inflicted one blow which killed him. The details of the testimony are unnecessary so far as the disposition of the appeal is concerned.

After appellant’s witness Wilson had testified to appellant’s theory of the case, and at the termination of his examination and cross-examination, the court beckoned to the deputy sheriff, and after a short whispered conversation the deputy sheriff took the witness from the presence and in front of the jury and carried him to jail. The jail was immediately behind and in a few feet of where the jury was sitting. While the bill is quite lengthy, repeating the testimony by questions and answers in order to develop fully the matters, this is the substance of the bill, but we will state a little more of this bill of exceptions: The witness testified at length, controverting the state’s theory that appellant killed deceased by stabbing him in front of the bar in the saloon. The witness was a bartender, and testified that he waited on deceased and three others, serving each with a glassi of beer; that he went into what he called the “stockroom” adjoining the saloon, for supplies for the bar, and just as he entered this room he heard a noise as if of the breaking of glass, looked up, and saw the deceased running out of the door with his knife in his hand. The effect of his testimony was that he was chasing appellant,' appellant having just passed out of the door, and such is the theory of the defense as shown by his testimony. He also stated, when deceased came in the bar prior to appellant, he had an opened knife in his hand and was standing at the bar, and just as he (witness) went out appellant came in, and deceased followed him out of the saloon, appellant being in front and deceased following and running. This was very important testimony to the defendant, and materially contradicted the state’s case. While the court did not directly comment upon the testimony of this witness, yet what he did was equally as effective as if he had said to the jury:

“This witness committed perjury, swore falsely. Mr. Sheriff take him to jail.”

He said nothing in front of the jury about the witness, but immediately upon cessation of the witness’ testimony had the deputy sheriff to arrest and put him in jail. This was error, and of such a nature it requires a reversal of the judgment. See articles 735, 7S7, C. C. P. Bearing upon this question we cite the following cases: Kirk v. State, 35 Tex. Cr. R. 224, 32 S. W. 1045; Lawson v. State, 32 S. W. 895; Zysman v. State, 42 Tex. Cr. R. 432, 60 S. W. 669; Drake v. State, 65 Tex. Cr. R. 282, 143 S. W. 1160; Scott v. State, 72 Tex. Cr. R, 26, 160 S. W. 960; Caruth v. State, 177 S. W. 973; McMahan v. State, 61 Tex. Cr. R. 489, 135 S. W. 558; Simmons v. State, 55 Tex. Cr. R. 441, 117 S. W. 141; Moore v. State, 33 Tex. Cr. R. 306, 26 S. W. 403.

Exemplifying the above, attention is called to the affidavits of two of the jurors, Yan Horn and Hayworth. Van Horn stated in his affidavit attached to the motion for new trial: That when the jury retired to consider their verdict on the first ballot on the question of guilt the jury voted 8 to 4. This was on the night of the 13th of February that they began their deliberations on the case, and a verdict was not reached that night; and the next day, while they were considering the case, several of the jurors began discussing and arguing with afiiant that the negro witness Wilson was locked up in jail by the court for lying while he was testifying as a witness for defendant. Several of the jurors then said that the court had the witness Wilson locked up in jail because he was sitting there lying to the jury. The other jurors argued with the affiant before he agreed to vote the defendant guilty. He further states he did not know at the time Wilson had been ordered arrested and locked up by the court until the other jurors had so informed him while they were deliberating on the ease. On the 14th of February, when the jury came into court and reported that the jury could not agree, the jury stood 11 to 1 for conviction. That at this time affiant had not agreed to convict the defendant unless it be for manslaughter, and all the other jurors refused to come lower than murder.

Hayworth stated that he was a juror in the case, and that the jury when they retired stood 8 for guilty and 4 for not guilty, and he was one of the jurors who voted not guilty at first, tie says the jury retired to consider their verdict about 6:30 o’clock in the evening of the 13th, and the next day one of the jurors told affiant that the sheriff had lock'ed up the witness Wilson. “He said to me, that negro was lying; didn’t you see the sheriff take him and lock him up?”

There was no contest with reference to this matter in the motion for new trial, and the court passed upon the motion as presented with these affidavits attached as exhibits. It is unnecessary to discuss this. Viewed in the light of what has been said and what these jurors have stated in these affidavits, uncontradicted, and uncontested, will show the result of the action of the court in having defendant’s witness Wilson locked up in jail.

Bill No. 3 recites that the jury, after retiring at 6:30 p. m. February 13, 1917, came into court February 14th at 1:30 p. m., and reported they had not reached a verdict and did not think it possible for them to do so, and requested they be discharged. The court asked how they stood, and was informed 11 to 1. He asked if they were divided on the question of guilt. Thei foreman replied they had all agreed upon the question of guilt. Whereupon the court said to the jury:

“Gentlemen, I congratulate you upon the progress you have made; it is rather a long ease, and it is but natural that it should take some time. I cannot now discharge you. You may retire to your room.”

Exception was reserved to this for various and sundry reasons.

The other bill No. 4 recites that, after the jury had retired at 6:30 p. m. February 13, 1917, to consider their verdict, and had reported to the court at 1:30 p. m. February 14th that they were unable to reach a verdict, and had been by the court ordered to further deliberate upon the cause, the jury again reported to the court at 1.1 o’clock a. m. February 15th, after they had been deliberating for 40 hours, that they were unable to reach a verdict, and asked that they be discharged for the reason they did not believe that they could reach a verdict, whereupon the court again asked the jury how they stood, and the foreman replied that they stood 11 to 1. The court then said to the jury:

“Gentlemen, it seems that you are practically agreed. I will have to send you out again. I would not be authorized under the law to discharge you just yet.”

The court then sent the jury back to their room for further consideration. To this action of the court, and especially to the language used “Gentlemen, you are practically agreed. I will have to send you out again”— appellant excepted for the reason it was highly improper and prejudicial to his rights, etc. This is a matter that ought not to have occurred. This character of conduct by the court is not justified by our law. It is deemed unnecessary to discuss it. It is clearly erroneous and prejudicial.

For the errors indicated this judgment will be reversed, and the cause remanded.

PRENDERGAST, J., dissents. 
      (g=sFor other oases see same tooic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     