
    BRYAN v. STATE.
    (No. 11878.)
    Court of Criminal Appeals of Texas.
    June 23, 1928.
    1. Jury <©==>76 — Appointment of jury commissioners to draw jurors for two of six week term deemed sufficient held not arbitrary disregard of statute.
    Where special judge, holding previous term of court, regular judge having died, appointed jury commissioners ■ to draw jurors for term under impression that jurors for two weeks would be sufficient to dispose of business for which jurors were needed, there was no arbitrary disregard of statute in failing to have jurors drawn by jury commissioners for full six weeks of term of court.
    2. Criminal law <©=>1137(1) — Defendant securing postponement, knowing no regular jury would then be available, could not complain of trial by jury summoned by sheriff.
    Where special judge appointed jury commissioners to draw jurors for two weeks of six week term believing two weeks was sufficient for business of court, and case was set for trial for third week, at which time jury was present which had been drawn by jury commissioners, and trial was postponed at request of defendant’s attorney for his accommodation to following week, with notice that no regularly drawn jury would be aváilable, but that it would be necessary for sheriff to summon jury, if case was postponed, defendant could not complain because he was tried before jury summoned by sheriff.
    3. Criminal law <S=v>925i/2(l) — 'Where jury knew of previous trial of codefendant, and assessed longer punishment against defendant because older than codefendant, court erred in denying new trial.
    Where part of jury selected to assess penalty on defendant’s plea of guilty to manufacturing liquor stated on voir dire examination that they had heard facts in case, and knew of disposition made in cases aganst codefendants tried immediately preceding present case, and testimony of juror showed that jury had considered against defendant result of previous case, and assessed longer term of imprisonment because defendant was older than previous defendant, though no evidence was introduced to show previous defendant was younger, court erred in refusing to grant new trial on ground that jurors compared various defendants in different cases to injury of defendant.
    Appeal from District Court, Baylor County ; Isaac O. Newton, Judge.
    Jim Bryan was convicted of manufacturing intoxicating liquor, and be appeals.
    Reversed and remanded.
    Berry, Stokes, Warlick & Gossett, of Vernon, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellant was indicted under three counts, the first charging him with manufacturing intoxicating liquor, the second with possessing equipment for manufacturing such liquor, and the third with possessing such liquor for the purpose of sale; the second and third counts were withdrawn, and appellant entered his plea of guilty to the first count, and his punishment was assessed at three years in the penitentiary.

In his first bill of exception appellant complains because he was tried before a jury summoned by the sheriff. When motion was made to set aside the jury panel for the week, the question was examined into, and the following facts developed: The regular judge had died, and a special judge who was holding a previous term of court appointed jury commissioners to draw the jurors for the present term of court was under the impression that jurors for two weeks whuld be sufficient to dispose of the business for which jurors would be needed. He therefore directed the jury commissioners to select jurors for the two weeks only; it being a six weeks’ term of court. The present case with others was set for trial for the third week, at which time a jury was present which had been drawn by the jury commissioners, and was available to appellant if his case had been tried at that time. The trial was postponed at the request of appellant’s attorney and for his accommodation to the fourth week, he being advised at the time by the learned judge that no regularly drawn jury would be available, but that it would be necessary for the sheriff to summon a jury if the case was postponed. It does not appear that there was any arbitrary disregard of the statute in failing to have jurors drawn by the jury commissioners for all the weeks of the term of court; hence the case does not fall within the principle relied upon by appellant as announced in White v. State, 45 Tex. Cr. R. 597, 78 S. W. 1066; Woolen v. State, 68 Tex. Cr. R. 189, 150 S. W. 1165; Bickham v. State, 51 Tex. Cr. R. 150, 101 S. W. 210; Irvin v. State, 57 Tex. Cr. R. 331, 123 S. W. 127. The fácts in the present case rather make applicable the rule announced in Greene v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. A. (N. S.) 706, which seems to be directly in point. When the learned special judge directed the jury commissioners to select juries for only the second and third weeks of the term, he may have erred in judgment in thinking the jury business could be ‘disposed of in two weeks, but there is nothing to indicate that in not having jurors drawn for other weeks of the term he was intentionally or arbitrarily ignoring the statute.

Appellant signified to the court his intention to enter a plea of guilty to the first count in the indictment. When the jury panel from which to select, a jury to assess the penalty was called, all the jurors on the panel except five stated on their voir dire examination that they had heard the purported facts of the case discussed, had seen two stills and other equipment connected therewith on the courthouse lawn, knew what disposition had been made of one or both of the cases against the codefendants Quincy Couch and Buddy Oliver, whose eases had been tried immediately preceding the present case. Said jurors stated they could lay aside aU such knowledge, not be influenced thereby, and give appellant a fair and impartial trial. Appellant’s challenge was based on the ground that said jurors, with knowledge of the disposition of the other eases, together with knowledge of the facts, could not prevent themselves from being influenced and prejudiced thereby, as they would inevitably compare appellant, his acts, and participation in the transaction with that of his codefend-ants, and would necessarily, though unconsciously, be influenced thereby in arriving at the penalty to be assessed against appellant. The court overruled the challenge, and qualified the bill, bringing the matter forward by stating that he in person asked each juror whether they ha’d an opinion as to the guilt or innocence of appellant from hearsay or otherwise, to which they answered they had not, and that they could give both the state and appellant a fair and impartial trial.

. Upon motion'for pew trial, appellant set up misconduct on the part of the jury, and supported it by the testimony of one juror, who testified that while they were deliberating on appellant’s case the fact that Buddy Oliver was tried the day before and given a two-year sentence was mentioned in the jury room; that he did not remember whether it was the Buddy Oliver case, but the fact was mentioned that in a case tried the day before the defendant had gotten two years; that this appellant was an older man, and 'that he ought to have more, was mentioned by one of the jurors; that fact was discussed in the jury room to that extent, and also the fact that appellant was an older man than the one tried the day before; that, as appellant was older than the one tried the day before, appellant ought not to be shown as much leniency. After this discussion, all the jurors agreed to a penalty of three years against appellant. None of the other jurors was called either by the state or appellant to affirm or deny the matters testified to by the juror who gave the-testimony related. The facts emphasize the impropriety of permitting jurors to sit in a case where they have knowledge at first hand of the circumstances surrounding the transaction upon which they are called to pass. The court may have been justified in declining to sustain the challenge to the jurors, but, after it was developed upon motion for new trial that the jury had considered against appellant the result of a case theretofore tried, of which they had knowledge, he should have granted a new-trial. Nantz v. State, 94 Tex. Cr. R. 283, 250 S. W. 696.

In Hall’s Case, 92 Tex. Cr. R. 1, 241 S. W. 154, much the same question was considered and many authorities collated. There accused’s codefendant was younger than accused. Knowledge of his age reached. the jury through the improper statement of the district attorney. It was used as an argument why one juror should agree to the death penalty for accused, whereas he had theretofore been holding out for life imprisonment. In the present case, knowledge of the facts had come -to the jurors through their own observation and from what they had learned in the previous .trials of appellant’s codefend-ants. No evidence was introduced on this trial to show that the codefendants were younger than appellant, yet this knowledge on .the part of the jurors was used against him, and resulted in his punishment being fixed at three years, when the minimum penalty was one, because it seems that Oliver, a younger man, had been given two years the day before. The result emphasizes the soundness of appellant’s challenge upon the ground that the jurors, with knowledge of the facts, could not prevent themselves, although unconsciously, from comparing the various defendants, which comparison in this case resulted unfavorably to appellant. Of course, if he had been given the minimum penalty, no harm would have been shown. It may be that under the facts he deserved the penalty assessed, but ⅛⅛ should not have been reached through comparison in age with his codefendants, in the absence of evidence upon the point. - .

The judgment must be reversed, and the cause remanded. 
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