
    HALLMARK v. STATE.
    (No. 6231.)
    (Court of Criminal Appeals of Texas.
    May 4, 1921.)
    1. Criminal law <&wkey;925!/2(3) — Statement by one juror to another of facts not in evidence is ground for new trial.
    Code Cr. Proc. 1911, art. 837, subd. 7, providing that a new trial shall be granted when the jury, after having retired to deliberate, receives other testimony, helál applicable to statements made by one juror to another of facts not in evidence after jury has retired to deliberate.
    2. Criminal law ©=1174(5) — That other testimony is received after jury has retired not ground for reversal, unless fairness of trial has been affected.
    That testimony other than that produced during trial is received by the jury after it has retired to deliberate is not ground for reversal, under Code Cr. Proc. 1911, art. 837, subd. 7, where the fairness of the trial could not have been affected thereby.
    3. Criminal law <&wkey; 1163(6)— State has burden of proving other testimony received by jury during deliberation did not affect fairness of trial.
    Where testimony other than that used during trial is received by the jury after it has retired to deliberate, in violation of Code Cr. Proc. 1911, art. 837, subd. 7, the accused, in order to obtain a new trial by reason thereof, is not required to show injury, but the state has the burden of showing that the fairness of the trial was not affected thereby.
    4. Criminal law ©=1'174(5) — Juror’s reference during deliberations as to defendant’s connection with another crime held not to have affected fairness of trial.
    In prosecution for burglary, in which defendant pleaded guilty and received the lowest punishment permitted by law for such offense and in which he sought suspension of sentence, evidence foelcR to show that reference by juror during deliberation to defendant’s connection with another theft did not affect the fairness of the trial.
    Appeal from,District Court, Coke County; O. E. Dubois, Judge.
    Claude Hallmark was convicted of burglary on plea of guilt, and he appeals.
    Affirmed.
    D. I. Durham, of Robert Lee, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Appellant was charged with the offense of burglary, and, upon a plea of guilty, was convicted; his punishment being fixed at confinement in the penitentiary for a period of two years. Reversal is sought upon the ground that the jury, in its retirement, received other testimony prejudicial to the appellant.

The testimony of two jurors was taken. The juror Cobb said that he had heard a discussion of appellant’s connection with the theft of $201 from a Mr. Johnson, at the Greer Hotel. The juror, however, was unable to state whether this occurred while he was serving on the jury or not. Patterson, another juror, said that, while the jury was deliberating, “some one remarked that he had heard that the appellant had been accused of being connected with the theft of $201 from one Mr. Johnson, at the Greer Hotel' that, at the time, another juror remarked that the appellant was not on trial for that alleged offense.

Our statute declares that a new trial shall be granted—

“when the jury, after having retired to deliberate upon a case, have received other testimony.” Code of Crim. Procedure, art. 837, subd. 7.

Statements by one juror to another of facts not in evidence are within the purview of this statute. McKissick v. State, 26 Tex. App. 673, 9 S. W. 269; McDougal v. State, 81 Tex. Cr. R. 187, 194 S. W. 944, L. R. A. 1917E, 939. A transgression against the statute (article 837) is not ground for reversal of the judgment where it is such that it could not have affected the fairness of the trial. Judge Ramsey, writing the opinion of the court, said:

“We think the true rule is that where, as in this ease, the testimony supports the verdict, and the charge of the court properly submits the case to the jury, that a verdict ought not to' be set aside for every incidental and casual mention of a former trial or a former conviction, and that in no case should it be set aside in a case tried according to law, where the conviction is supported by the testimony, unless the court may fairly and reasonably see, in the light of all the circumstances, that such reference and discussion did or might have prejudiced the appellant’s case.”

See Smith v. State, 52 Tex. Cr. R. 351, 106 S.W. 1165, 15 Ann. Cas. 357; Austin v. State, 42 Tex. 355; Anschicks v. State, 6 Tex. App. 524; Allen v. State, 17 Tex. App. 637; Jack v. State, 20 Tex. App. 656; McDonald V. State, 15 Tex. App. 493.

The rule is, however, that when the terms of the statute axe violated, the burden is not upon the accused to show injury, but upon the state to show the contrary. Bell v. State, 2 Tex. App. 215, 28 Am. Rep. 429; Early v. State, 51 Tex. Cr. R. 382, 103 S. W. 868, 123 Am. St. Rep. 880; Clements v. State, 69 Tex. Cr. R. 370, 153 S. W. 1137; McDougal v. State, 81 Tex. Cr. R. 187, 194 S. W. 944, L. R. A. 1917E, 930. Applying these principles to the instant ease, we are of the opinion that a reversal of the judgment is not authorized.

Appellant entered a plea of guilty, and liis punishment for the offense was fixed at the lowest permitted by law. He sought, however, a suspension of his sentence. It was shown that he had not been previously convicted of a felony. His father testified that he had been previously indicted for another, “for going into a store, or something like that,” about a year before the trial; that he had also pleaded guilty of theft in the county court cases; he also referred to an indictment for burglary of the store of one Luttrell.

No witnesses testified to the good reputation of the appellant as a law-abiding citizen. Those introduced declared that, in the burglary line, it was bad. One witness said that bis reputation as a law-abiding citizen had been good until recent years, but in recent years it has not been good if all the accusations are true. On cross-examination he added that it was good previous to the time he went into “Jim’s kitchen.”

The general references to his previous offenses, as developed upon the trial, leave us without accurate knowledge as to whether the alleged occurrence in the juryroom was included in the evidence or not. The appellant, claiming that the jury had received other testimony, was charged with the burden of establishing this allegation. He called only two jurors. One of them was unable to say that there was any mention of appellant’s connection with the other offenses in the jury room, and the testimony of another juror indicates that the reference was but incidental. Under the circumstances, in discharging the burden upon him, the appellant might have called the remaining members of the jury. His failure to do so unexplained may have been the basis of an inference by the trial judge, in deciding the issue of fact, that their testimony would have been unfavorable, or at least would not have supported the appellant’s contention. Under these circumstances, it is at least questionable whether we would be warranted in holding that the trial judge was not justified in deciding the issue of fact raised by the motion against the appellant. Be that as it may, it is certainly not made clear that the alleged reference, if made, was not to some of the numerous theft transactions which were brought to light in the development of the evidence upon his plea for suspended sentence. In the light of the entire record, we are not able to conclude that the transaction was such as might have prejudiced the appellant’s case. His plea of guilty, taken in connection with the proof, which was undisputed, established his connection with the offense. He had been charged with numerous other offenses involving moral turpitude, and bore a bad reputation as a law-abiding man.

We are unable to persuade ourselves that there, was a reasonable probability that the jury was deterred from recommending the suspension of his sentence by the incident complained of; but, on the contrary, we are/ impressed with the view that the evidence against the defendant was of such cogency that, in the light of it, a different result could not, in reason and fairness, have been looked for.

The judgment is affirmed. 
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