
    FAULK v. STATE.
    (No. 10430.)
    Court of Criminal Appeals of Texas.
    April 13, 1927.
    1. Criminal law <&wkey;855(7) — Sending sheriff to jury room to ask how soon they would report held not error, where there were insufficient jurors for next case (Code Cr. Proe. 1925, art. 671).
    • Where, - after jury retired, there were not enough jurors to proceed with trial of another case, sending sheriff to jury room to ask how soon they would report held not violation of Code Cr. Proc. 1925, art. 671, prohibiting any person from being with jury during deliberation.
    2. Criminal law &wkey;>1163(6) — Where court sent sheriff to jury room to ask how soon they would report, injury to defendant held not presumed.
    Where there were not enough jurors to proceed with trial of another case, and sheriff was sent by court to jury room to ask how soon they would report, there was no presumption of injury to defendant, so as to throw burden of rebutting it on state.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Joe Faulk was convicted of driving a motor vehicle on a public road while intoxicated, and he appeals.
    Affirmed.
    Jack B. Blalock and Davidson, Blalock & Blalock, all of Marshall, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for driving a motor vehicle on a public road while appellant was intoxicated; punishment being one year in the penitentiary.

The evidence was conflicting upon the issue of appellant’s condition while driving the automobile, but is sufficient to support the verdict.

After the jury had been out about 20 minutes, the trial judge called another case, and, finding that he did not have enough jurors to proceed with the trial, directed the sheriff to go to the jury room and ask the jury what was the prospect for a verdict, or, how long before they would report. Appellant objected to the court sending the message on the ground that it was an interference with the jury in their deliberations, and because it would probably have the effect of forcing a verdict. The sheriff delivered the judge’s message, and, upon his return, reported that the jury said, “Ask the judge to give us a few minutes.” The bill states that “shortly thereafter” the jury returned their verdict, and that appellant excepted to the action of the court in “communicating with the jury without bringing them into open court, because his action in effect forced a verdict against the defendant.” In briefing the point, appellant insists that the action of the court was in violation of, article 671, O. O. P. 1925, which is:

“No person shall be permitted to be with a jury while they are deliberating upon a case, nor be permitted to converse with a juror after he has been impaneled, except in the presence and by the permission of the court, or except in a case of misdemeanor where the jury have been permitted by the cojirt to separate. No person shall be permitted to converse with the juror about the ease on trial.”

Appellant is insisting on a construction of the statute which would give it such application as not heretofore invoked. The cases cited by him, among them being Mauney v. State, 85 Tex. Cr. R. 184, 210 S. W. 959; Early v. State, 51 Tex. Cr. R. 382, 103 S. W. 873, 123 Am. St. Rep. 889; Mann v. State, 84 Tex. Cr. R. 109, 204 S. W. 434; Touissant v. State, 92 Tex. Cr. R. 374, 244 S. W. 514, clearly show that the statute has been applied to prevent conversation by jurors with outsiders. We think it has no application to an officer of the court acting under the direct authority of the trial judge in a matter looking to the orderly and proper dispatch of the business of the court, and which is not shown to have operated injuriously to accused. The Osborne Case, 93 Tex. Cr. R. 54, 245 S. W. 928, is not in point. There the action of the trial judge which was condemned was going into the jury room and discussing with the jury the meaning of the court’s instructions theretofore given. In the present ease thfere is no pretense that the sheriff did more than deliver the judge’s message and return the' jury’s answer. The trial judge should always exercise great care in any communication with the jury in order that it might not be calculated to force from them a verdict. We cannot bring ourselves to conclude that anything in the court’s conduct in the present ease is subject to such .inference. Binding that he could not proceed with another trial on account of lack of jurors, it was doubtless his purpose to ascertain if it would be necessary to order talesmen or whether the jury in the present ease would likely be available within a reasonable time. The statement in ■the bill that they did report “shortly” after the inquiry was made gives this court little information as to the time intervening be-between the inquiry and the report. The bill does not show that injury resulted to appellant. We think the rule that injury is presumed and the burden is on the state to rebut the presumption does not apply here as in the class of cases cited. The point discussed is the only one briefed for appellant. Another bill is found in the record, which we have considered, but it presents no error calling for reversal.

The judgment is affirmed. 
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     