J. T. Bogan v. The State, 30 Tex. Ct. App. 466

DAVIDSON, Judge. Upon reading the charge the court inquired of defendant’s counsel if they desired to have any special instructions given the jury. The answer being in the negative, they were asked if any exceptions were desired to be reserved to the charge given, and if so they were requested to present them, so that the charge as given could then be corrected, and any additional charges necessary could then be given.

The counsel stated in reply, “that they had a number of exceptions to the charge, but the Court of Appeals had decided that a court could not alter or amend his charge after it had been read to the jury and filed, and that defendant needed time, and would avail himself of his right to except after the jury had retired, and before they had brought in a verdict.” To this the court replied: “All right, then; I will make the bill of exceptions show these facts.” The court qualified this bill of exceptions by stating that he had completed the writing of his charge and had given it to the defendant’s counsel at 5 o’clock p. m., and that they had it in their possession until 10 a. m. of next day, and had carefully noted their exceptions to the charge and had them ready to present to the court as soon as the jury retired, which was done.

He further states: “I have adopted the rule to write my charge in all criminal cases, and allow defendant’s counsel to have an opportunity to correct any errors by offering such instructions as will protect the rights of their client, before submitting the case to the jury.

I know of no law for this, but I have always believed it should be done in order to cure any defect in the charge by proper instructions offered for that purpose, rather than to have the jury brought back into court after their retirement.” The record also discloses the fact that a bill of exceptions was allowed and approved by the court within five minutes after the jury retired to consider their verdict." The action of the court is assigned as erroneous, and a reversal asked on this ground. To support his position defendant refers us to the cases of McCall v.

The State, 14 Texas Court of Appeals, 353, and Phillips v. The State, 19 Texas Court of Appeals, 158. In these cases the court refused to sign and approve the bill of exceptions reserved to the charge. In the case tinder consideration the bill was not refused, but allowed, and the defendant is before this court urging the alleged errors of the charge, as therein complained of, for reasons why this cause should be reversed. The cases cited are not analogous nor in point.

The broad distinction between the cases cited and the one under consideration is found in the fact that in each of said cases the bill was refused, whereas in this case the bill was allowed and approved, and made a part of the record. The mere fact that the matter complained of occurred in the presence of the jury does not necessarily constitute reversible error. If so, then every bill of exceptions taken to rulings of the court during the progress of the trial in the presence of the jury would constitute reversible error.

Such practice would result in retiring the jury from the court room at any stage of the proceedings during the trial when exception is taken, and if not, then, as claimed, the necessary consequence would be the reversal of the judgment on appeal. Such a result would be farSical, if not ruinous, and would lead to unreasonable and absurd delays in the disposition of business in the trial courts. This court has never held that such a rule of practice was authorized.

The action of the court in such cases should always keep in view the pre-eminent idea involved in all criminal cases—the fair trial of the defendant under the requisites of the written law, constitutional and legislative. The action of the court should never be such as would influence the jury adversely to the party on trial. The verdict should be untainted from any undue influence by the ruling or intimations of the trial court.

There may be exceptional cases when it would not only be right, but eminently proper, for the court to retire the jury during pendency of argument or the investigation of matters of a character questionable as to the influence they may have upon the jury. We are not discussing the inhibition imposed upon the court by the express enactment of the Legislature, but only those matters of practice that are-necessarily largely discretionary with the judge as presiding officer of the court. This view is in harmony with the cases cited by the defendant.

We are of opinion that the bill of exceptions manifests no error and shows no injury resulting to defendant in the matters complained of. There are various assignments of error urged by defendant, but after a careful examination of each of them we find no reason why the conviction in this case should be set aside, and the judgment is in all things affirmed. Affirmed. Judges all present and concurring.