C. W. Boyett v. The State, 26 Tex. Ct. App. 689

Hurt, Judge. Appellant, being indicted for the murder of Ben Warren, was tried and convicted of murder of the first degree, and was sentenced to a life term in the penitentiary. We will notice the alleged errors in the order in which they are assigned. First. “The court erred in changing the venue from Nolan to Taylor county.” The court of its own motion changed the venue of the case from Nolan to Taylor county.

Appellant objects because, Sweetwater being the county seat of Nolan county, Colorado City the county seat of Mitchell county, and Abilene the county seat of Taylor county, he contends that the venue should have been changed to Mitchell county, as its county seat was but twenty-eight miles distant from Sweet-water, whereas Abilene is distant forty-two miles. This being a change of venue upon the motion of the district judge, he had the right to send the case to any county in his own or in an adjoining district. (Code Crim. Proc., art. 576.) Second.

The court should have continued the case or granted defendant a new trial because the motion for continuance was improperly overruled. The application to continue was to pro ■ cure the testimony of H. H. Williams, Thomas Barkston, Mrs. Martha Terrell and C. A. Powell. By several of these absent witnesses defendant expected to prove the time of night the killing occurred. By Barkston that he saw defendant pass Bradley’s opera house that night about 9:30 p. m., going in a southeast direction, and did not see him any more that night.

By Martha Terrell that she lived in the southern part of Nolan county, and that, the day before Ben Warren was killed, two men inquired of her about him and said they had a settlement to make with him, and that Warren could not live in the same county with them, and that these men went off in the direction of Sweetwater, and also that defendant was not one of these men.

Let us concede for the argument that the diligence used to procure the attendance of these witnesses was perfect, the question remains; was there error in overruling the application, and was there error in refusing a new trial because of this mat" ter? We have no hesitation in saying there was none, because the facts, if true, and' if adduced on the trial, would not have affected the result of the trial in the slightest manner; and, while competent, the bearing, force and effect, when considered in connection with the facts adduced on the trial, would have been as chaff before the wind. Third.

It appears by the motion for new trial and certain affidavits that Robert Tuttle, one of the jurors, during the trial, by the consent of the State’s and of defendant’s counsel, was permitted to go home, guarded by the deputy sheriff, to visit his sick wife. That when they reached the house Tuttle invited the officer to have a seat, but he declined, leaving Tuttle with his wife and a girl in the room. Tuttle remained in the house a few minutes, but no one but his wife, and perhaps the girl, were permitted to converse with him.

Tuttle swears “that he remained with his sick wife about thirty minutes; that no-one was present except his wife and a little girl about eleven years of age; that there was nothing said about the case or trial at all. It was not mentioned except that his wife asked him how long it would be before he could come home. He replied that he thought it would be several days. The rule upon this subject is that where there is a separation by permission of the court, to which the defendant then excepts, the judgment will be reversed without reference to injury or no injury to defendant.

But in cases like the one in hand, and where the juiy separate without permission of the court, to reverse, it must appear that the juror conversed with others about the case, or was guilty of misconduct to the prejudice of the accused. (Jones v. The State, 13 Texas, 168; Jack v. The State, 26 Texas, 1; Wakefield v. The State, 41 Texas, 556; March v. The State, 44 Texas, 64; Defriend v. The State, 22 Texas Ct. App., 570.) Opinion delivered December 15, 1887.

Fourth. “Statements made by the accused while in jail or under arrest are not admissible against him, unless the same be voluntarily made after having been first cautioned that such statements might be used against him; and because of the violation of this rule there was error.” By reference to the bill of exceptions it appears that defendant was simply confined under the rule as a witness; that, though suspected, there is no evidence tending to show that he knew of the suspicion against him.

These being the facts attending the supposed arrest or custody, we hold that he was not in arrest or custody within the meaning of

article 662, Code of Criminal Procedure. In the Wood case, a companion case to this, we held the evidence taken before the inquest inadmissible. (22 Texas Ct. App., 431.) This, however, was under quite a different state of facts. Fifth. When the jury returned their verdict into court, the same was accepted and the jury informed that they were discharged. It being discovered that the verdict was informal, within a half minute after the verdict was returned, the jury was recalled to the box and the verdict was amended.

When recalled, the jury were making their way to the clerk’s desk to receive their warrants; only a few had gotten five feet from the place where they were standing when they returned their verdict, and half of them had not broken ranks. Appellant moved for a new trial because of this separation, and insists that because of this matter the judgment must be reversed. To this we can not agree. Evidently from these facts there could have'been no injury to the rights of defendant, and hence the above cited authorities apply and control.

Though we have not discussed all the points presented in the brief of appellant, we have noticed those which are deemed worthy of consideration, having given to all a close and critical examination. We find no error in the judgment, and it is affirmed. Affirmed,