
    WOOD v. STATE.
    (No. 4936.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    1. Witnesses @=371 — Animus of Witness— Testimony Admissible.
    Where a negro woman had given testimony tending to show animus of accused’s witness towards deceased, her animus towards such witness was a proper subject of inquiry, and evidence that she had been arrested by him was admissible, although evidence of offense for which she was arrested was not relevant.
    2. Witnesses @=3340(3) — Impeachment—General Reputation.
    Testimony of a witness might have been discredited by proof of her general reputation as a prostitute, or by proof of complaints or prosecutions therefor.
    3. Criminal Law @=1170(1) — Excluding Impeaching Testimony — Haemless Eeeok.
    Where testimony of a negro woman boro alone upon animus of accused’s witness towards deceased, and accused’s witness gave no testimony as to the incidents of the homicide, but testified alone to facts which were established by other witnesses, excluding testimony tending to show her animus towards accused’s witness will not justify reversal.
    4. Witnesses @=330(1) — Impeopee Cross-Examination.
    It was improper on cross-examination to ask accused if his statement that he had not used an oath in a difficulty with deceased on the day preceding the homicide was as true as any of his other testimony.
    5. Criminal Law @=763, 764(3, 4) — Erroneous Charge — Refusal.
    Requested special charge ’that there was no evidence showing, or tending to show, that a witness for accused instigated or was connected with the homicide, if given, would have been a comment by the court on the weight to 'be given the facts.
    6. Criminal Law @=854(9) — Separation of Jury.
    That one juror went to bed in a room over the room, in which the jury deliberated, leaving the others in the lower story, would not, where he had no communication with outsiders, and was not outside the building in which the jury was confined, disclose such separation as would justify reversal under the statute.
    7. Criminal Law @=855 (8) — Conversation of Juror with His Family.
    That after the jury had been impaneled one of the jurors, whose wife was sick, was, with permission of the court and consent of defendant and one of Ms attorneys, allowed to communicate with his family, held without injury to accused; Code Cr. Proc. 1911, art. 74S, permitting conversations by permission and in presence of court.
    8. Criminal Law @=1153(4) — Review-Leading Questions — Discretion.
    The discretion allowed the trial judge as to the method of ascertaining what occurred in the jury room is of such breadth that the fact that a leading question may have been asked would not furnish ground for reversal.
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Marshall Wood was convicted of murder and appeals.
    Affirmed.
    Clark & Sweeton, of Greenville, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of murder, and punishment fixed at confinement in the penitentiary for five years.

Appellant, using a shotgun, shot deceased, Mike Yeager, twice and killed him. They had a wordy altercation the day before the homicide. Deceased became angry, and went to his home, and started away with his pistol, making threats, but, upon importunities of his wife and friends, remained at home. Appellant and deceased were both negroes, and on the day of the homicide deceased went to the home of a white man for whom he had done work at intervals for several yeairs. He took his pistol with him, wrapped it in cloth or paper, and laid it in an outhouse. A negro woman seeing it, and inferring from remarks deceased had made to her that he contemplated injury to appellant, she notified the wife of deceased, and also sent word to appellant to avoid the premises, as the deceased was armed and threatening to kill him. Appellant was working on an ice wagon for a witness named Waid, and, after receiving information from the messenger and others, he procured the shotgun with which he killed deceased from Waid’s office. The evidence touching the immediate incidents of the homicide was conflicting. Deceased was working with a hoe near a rosebush, and, according to the testimony of the lady of the house, was so engaged when the first shot was fired, he having prior thereto made no demonstration and had no conversation with appellant. Appellant’s theory was that be-for the-first shot was fired some words between him and deceased passed; that after the first shot deceased retreated, but when both shots were fired he was unwrapping his pistol. The state’s theory was that the deceased’s pistol was in the outhouse and not in his possession when he was shot.

The issues of manslaughter and self-defense were submitted in a charge which was not subject to any of the exceptions addressed to it.

Several witnesses testified that the reputation of deceased was that of a violent and dangerous man. One of these was Waid, the city marshal, and the employer of appellant. Waid also testified to the effect that after the homicide the deceased’s pistol was found in an outhouse, the defendant’s theory being that it had been taken there by some one after the shooting. When Waid heard of the trouble he went to the premises, and, according to the testimony of the negro woman, said, referring to deceased, “Where is the damn negro son-of-a-bitch.” Objection was made to this testimony, but the bill is silent as to the surrounding facts, and fails to give the court sufficient information upon which to determine that its reception was erroneous. It was doubtless received by the trial court on the theory that it tended to show the animus of the witness Waid.

While the witness who gave this testimony was on the stand she was, on cross-examination, asked if Waid had not arrested her and her girls for running a disorderly house. She answered this inquiry in the negative. The defendant offered to prove that she had been arrested by Waid for prostitution and other offenses. Her animus toward Waid was a proper subject of inquiry, and the fact that she had been arrested by Waid might have enabled the jury to form an estimate of her attitude. We think, however, that the offense for which she was arrested was not a revelant inquiry.

Pier testimony might have 'been discredited by proof of her general reputation as a prostitute, or by proof of complaints or prosecutions therefor. We think the court should have allowed the testimony.

We do not think, however, that the error in rejecting it is of such importance as would justify a reversal. Her testimony ■bore alone upon the animus of Waid, a witness for appellant, who gave no testimony as to the incidents of the homicide, but testified alone to facts which were established by the testimony of other witnesses, namely, the bad reputation of deceased, and the fact that deceased’s pistol was found in an outhouse on the premises where the homicide took place, after the homicide.

Appellant, while on the stand and under cross-examination, denied that in the difficulty with deceased on the day preceding the homicide he had used an oath, and was asked if that statement was as true as any of his other testimony. This was not a proper question, but, as the record is presented in the bill, it appears that the appellant did not answer it further than to reiterate his statement that he did not use an oath on the occasion mentioned.

The witness Waid was, on cross-examination by the state, assailed by innuendo as to his bias in favor of appellant. He admitted having employed an attorney for him; that the appellant had for a long time been in his employ; that on a former occasion, in a difficulty'with deceased, he had shot him, wounding him; that he regarded him as a dangerous man; and the gun used by appellant at the time of the homicide belonged to the witness, and was obtained by appellant from the office of the witness during his absence. The court was requested to inform the jury in a special charge that there was no evidence showing, or tending to show, that the witness Waid instigated or was connected with the homicide. This charge, if given, would have been a comment by the court on the weight to be given the facts legitimately developed tending to disclose the bias of the witness Waid in favor of appellant.

During their deliberations the jury used a sleeping room in the same building over the room in which they deliberated, and separated therefrom by a partition and stairway. It was in the same inclosure, and the outside doors shut and locked. One of the jurors went to this room to bed, leaving the others in the room in the lower story. This juror had no communication with outsiders, was not out of the building in which the jury was confined, and we think the facts disclose no such separation as under the statute would justify a reversal. Jenkins v. State, 41 Tex. 128; Cox v. State, 7 Tex. App. 3; Branch, An. P. C. p. 299, and cases listed,Watson v. State, 199 S. W. 1115, and cases cited.

The wife of one of the jurors was sick, and, after the jury were impaneled, he had telephone communication with his mother-in-law and other members of his family, which, according! to his testimony, had no reference to the case, but was confined to an inquiry as to the condition of his wife. These communications are stated by the trial judge, and, as we gather from the record, admitted by counsel to have been with the permission of the court and the consent of the defendant and one of his attorneys. The persons to whom the juror talked were not called to verify his statement, and we are referred to Early’s Case, 51 Tex. Cr. R. 390, 103 S. W. 868, 123 Am. St. Rep. 889, as an authority for the contention made by appellant that these facts require a reversal of the judgment. They are distinguished from those disclosed in Early’s Case by the important fact that in that case the conversation was had without the consent of either the court or the defendant or his attorney. It was held that the communications over the telephone, being unauthorized, would be treated as injurious unless the state was able to show the contrary. In this case the statute! (article 748) was in no sense transgressed, unless it be that the conversations which the juror had were not in the presence of the court. That article of the statute permits conversations in the presence and by the permission of the court. It is uncertain whether the bill shows that the conversations were not in the presence of the court. It does show that he gave his permission, and that the appellant and his attorney consented that the conversations should be had over the telephone with members of his family. A fair implication from this consent and agreement, we think, is that no injury resulted to the appellant by the juror conversing with the members of his family. And we are of the opinion that the agreement and permission mentioned, together with the proof, which was not controverted, that the juror only talked to members of his family and about the condition of his wife, would, under the facts of this ease, discharge such burden as rested upon the state. See Johnson v. State, 27 Tex. 758; Nance v. State, 21 Tex. App. 458, 1 S. W. 448; Watson v. State, 48 Tex. Cr. R. 323, 87 S. W. 1158; Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. 588; Kutch v. State, 32 Tex. Cr. R. 184, 22 S. W. 594; Murphy v. State, 40 S. W. 978.

In developing facts concerning the alleged misconduct of the jury, there were questions asked by the state which appellant complains of on the ground that they were leading. This inquiry was before the court, and not before the jury, under which circumstances the rules of evidence governing the introduction of testimony are much more lax than in developing facts on the trial of a case before a jury. The discretion allowed the trial judge as to the method of ascertaining what occurred in the jury room is of such breadth that the fact that a leading question may have been asked would not furnish ground! for reversal of the case.

Finding no reversible error, the judgment is affirmed. 
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