Jack, a Slave, v. The State, 26 Tex. 1

Bell, J. The appellant was tried in the District Court for Guadalupe county upon an indictment charging him with the murder of a negro woman named Mcey, and was found guilty of the charge. A motion was made for a new trial upon several grounds, but relating mainly to misconduct on the part of the jury who tried the case. The record before us is one of the many which are continually brought into this court, in which questions of importance and nicety in criminal practice are presented with so meagre an exposition of the precise facts of the case as to embarrass us in their decision.

It is greatly to be desired that the record in a capital case should fully and clearly show that the rules of criminal procedure have been strictly observed, and that the ends of justice have not only been attained, but that they have been attained in precise conformity to the regulations established by law. It does not distinctly appear from the record, but it may be inferred with probability, that when the jury brought their verdict into court they were polled. An affidavit contained in the record states that when the verdict was returned, one of the jurors, (E. H.

Williams,) remarked to the court, when he was asked whether or not the verdict was his verdict, that “he did not think the negro ought to be hanged or punished with death.” It is contended here that under such circumstances the verdict ought’hot to have been received. There is no bill of exceptions which purports to state all the facts in connection with the reception of the verdiet by the court. It does not, therefore, appear that the juror, Williams, had any difficulty in assenting to the fact of the guilt of the accused.

If he was willing to say by Ms verdict, as it seems he did say, that the accused was guilty of murder, the consequence was matter of law, and the juror, as such, had no light, after finding the accused guilty upon the evidence, to set up Ms opinion that he ought not to suffer death. What a juror is required to do in a case like the present, is to respond to the issue which is submitted to him, of “guilty or not guilty,” and having so responded, his duty is ended. We conclude, therefore, that the court below did not err- in receiving the verdict as the unanimous finding of the jury.

We are also of the opinion that the court below properly decided that the juror,' Smith, was not so much under the influence of ardent spirits, at any time during the trial, as to render it probable that his verdict was influenced thereby. It is also contended here that a new trial ought to have been granted because the jury separated after they had retired to consider of their verdict, and before the verdict was agreed upon.

Article 605 of the Code of Criminal -Procedure provides that “after a jury has been sworn and impanneled to try any case of felony, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the consent of the District Attorney and the defendant, and in charge of an officer.” It may be inferred from the record that the jury in this case were present in the court room while the people were holding a political meeting; but it is not distinctly shown whether they mingled with the people, conversing and taking

part in the meeting, of remained apart from the people, in a body, as listeners or spectators. We infer, however, that they remained together in a body, without participating in the meeting or conversing with others, because the Sheriff of the county testifies that he had some trouble in keeping the juror, Smith, with Ms fellow-jurors during the progress of the meeting; and there is nothing to show that any one conversed with any of the jurors during the meeting.

It is shown that two of the jurors, at different times, perhaps, during their deliberations, retired from the jury room to the court yard, in- obedience to calls of nature, and that they were accompanied by a bailiff, and conversed with no one. We do not think this was such a separation of the jury as the law intends to prohibit; and are of the opinion that the court below did not err in overruling the motion for new trial- on the ground df the separation of the jury after they were sworn and impanneled.

There may have been- misconduct on the part of some of the jurors; but when a new trial is sought on the ground of misconduct of' the jury, it must be shown to have been such misconduct as has affected the fairness and impartiality of the trial. (Code1 of Crim. Procedure, Art. 672, Subdivision 8.) It is also assigned as error, that the decree foils to find the value-of the slave. The law' does not require that the decree shall make mention of the value of the slave.

The law requires the jury to find the value of the slave by their verdict; and to find, also, that the owner of the slave has not attempted to evade or defeat the execution of the law on the slave, in order to entitle the owner to receive compensation from the public Treasury: In this case the jury found the value of the slave by their verdict, but did not find the additional fact that the owner had not attempted to evade or defeat the execution of the law. This, however, is a matter with which this - court can take no concern. Possibly the jury were not able to find the fact.

The. .probability, however, is, that the failure to do so was an oversight on the part of the jury.—■ The record is silent on the subject, and the owner of the slave cannot now be heard upon this point-in this court. The judgment of the court below is affirmed. Judgment affirmed.-