HENDERSOÍT, Judge;
Appellant was convicted of embezzlement, and his punishment assessed at confinement in the penitentiary for two year's, and he appeals.
Appellant made an application for continuance, based on the absence of his wife, Lottie Dancy. He alleged that he expected to prove by her that 'Miller, the prosecutor, agreed to take a deed to the homestead of defendant and his wife for the money which defendant is charged' to have embezzled; that she refused to sign the deed, and that then said Miller agreed to take 100 tons of hay; that she would further testify that the money which defendant is charged to have embezzled was furnished by said Miller for the purpose of carrying on a saloon business in connection with defendant. All that this witness would testify in regard to appellant satisfying the claim of Miller for the money may he true, and still appellant would he guilty of embezzlement. It would be no condonation of the crime, in law, that the party who has embezzled money is afterwards willing to repay the amount; and it is entirely consistent with the State’s case that in this instance appellant desired to .secure the money which he had embezzled by giving prosecutor a deed to his homestead, or delivering to him 100 tons of hay. If appellant had stated some fact that he could prove by his wife,—as that she was present when the money was turned over by the prosecutor, Miller, to her husband, Dancy, and heard the terms of the agreement, or that the prosecutor, Miller, told her what the terms of the agreement were,—then her testimony might appear to be material. But in this respect the application merely states a conclusion, to wit, that the money appellant is charged to have embezzled ■ was furnished by said Miller for the purpose of carrying on a saloon business in connection with the defendant. If we were permitted to recur to the statement of facts to help out this application, that would show, by appellant’s own testimony, that the witness Lottie Dancy was not present when the money he is charged to have embezzled was delivered to him by Miller, the prosecutor, and the agreement' made. He states that this was not at his home, but at his cousin Barbara’s house. It does not occur to us that the first portion of the testimony expected to he proved by the absent witness was material; and, furthermore, that the remainder of the testimony proposed to he proved by the absent witnesses was not of any fact, hut was a mere conclusion stated; and, in addition to this, it does not occur to us that, if the witness had been present, and would have testified as stated, it would have been regarded by the jury, in the light of the other testimony in the case, as - probably true, or that it would have had any effect on their verdict.
The second and third hills of exception raise the question as to the admissibility of Auerbach’s testimony as to the payment made by appellant on the 31st day of January, 1898, of $75. Appellant says that this testimony was irrelevant, but he does not show how it was irrelevant. Evidence may be relevant as bearing directly on the issue, or it may be relevant as bearing on some collateral issue, which itself bears or serves to solve the main issue. Apparently, judging from the bill itself, the testimony is not irrelevant. If we recur to the statement of facts, the testimony in regard to the payment of this $75 has a bearing on the intent of appellant with reference to the embezzlement of the $300 delivered to him by the prosecutor on the 10th of January, 1898. Besides this, the testimony in regard to the $300, and its disposition, delivered by appellant on the 30th of January, 1898, was introduced into the case by the defendant himself. (See cross-examination of Miller.) Appellant himself testified with reference to the $300 that Miller paid to him on the 30th, some twenty days after the delivery of the $300, for the purpose of putting in a lunchstand, and as indicating the course of business between him and the prosecutor, Miller. The State’s testimony, on the contrary, showed, or tended to show, that this $300 was received as the previous $300 had been received,—that is, for the purpose of buying cattle by appellant for Miller; and further tended to show that $75 of the $300 was at once appropriated by appellant, not to purchasing cattle, but to the payment of his private debt to Auerbach. This evidence having been introduced by appellant, he could not complain that the case showed a different disposition of same than that testified to by him. Moreover, if it had not been introduced by appellant, it was perfectly competent evidence as tending to show the mode of dealing between the parties, and that this money, though paid to appellant by Miller for the same purpose for which the $300 charged to have been embezzled was paid, was itself misappropriated by appellant, and as tending to show appellant’s intent in regard to the money charged to have been embezzled, and to rebut appellant’s defensive theory; and it was properly limited in the charge of the court.
In connection with appellant’s third bill, on the subject of Auerbach’s testimony, he appends the affidavits of certain jurors to show how they regarded said testimony, and that on account of said evidence they were induced to find the verdict against appellant. Affidavits of this sort are not allowable. Jurors should not be permitted to show by their affidavits that they ignored and disregarded the charge of the court in considering the evidence. Under the eighth subdivision of article 817, Code of Criminal Procedure, affidavits are allowed on the part of the jurors to impeach their verdicts. This is relative to the misconduct of the jury, and appears to be an exception to the general rule. While, in general terms, the failure of the jury to'be controlled by the charge of the court might, in a certain sense, be considered misconduct, yet this is not the character of misconduct contemplated
by the statute. The rule on this subject is stated in Little v. Birdwell,
21
Texas, 597. We quote from that opinion as follows: “The genérally received doctrine is that the affidavits of jurors shall not be received to impeach their verdict; and for the obvious reason that it would open a door for tampering with jurors, and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under the sanction of an oath. The subject was very fully examined in the case of State v. Freeman, 5 Connecticut, 348, and, after reviewing the authorities, the court concluded that ‘almost the whole legal world is adverse to the reception of the testimony in question [that of the jurors who tried the case], and on invincible foundations.’ In Graham & Waterman on New Trials it is said: ‘It is admitted, notwithstanding a few adjudications to the contrary, that it is now well settled, both in England, and, with the exception of Tennessee, perhaps in every State of this confederacy, that such affidavits can not be received; and, we believe, upon correct reasoning.’ 3 Grab. & W. New Trials, 1429. The numerous cases there collected and reviewed confirm the observation. In Tennessee, where the affidavits of jurors are admitted to impeach their verdict, it is said they must be received with great caution. Saunders v. Fuller, 4 Humph., 516. In Ohio it is said they are npt, in general, admissible for that purpose, and can only be received under certain circumstances, where a foundation has been first laid by other evidence. Farrer
v.
State, 2 Ohio St., 54.
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HENDERSOÍT, Judge;
Appellant was convicted of embezzlement, and his punishment assessed at confinement in the penitentiary for two year's, and he appeals.
Appellant made an application for continuance, based on the absence of his wife, Lottie Dancy. He alleged that he expected to prove by her that 'Miller, the prosecutor, agreed to take a deed to the homestead of defendant and his wife for the money which defendant is charged' to have embezzled; that she refused to sign the deed, and that then said Miller agreed to take 100 tons of hay; that she would further testify that the money which defendant is charged to have embezzled was furnished by said Miller for the purpose of carrying on a saloon business in connection with defendant. All that this witness would testify in regard to appellant satisfying the claim of Miller for the money may he true, and still appellant would he guilty of embezzlement. It would be no condonation of the crime, in law, that the party who has embezzled money is afterwards willing to repay the amount; and it is entirely consistent with the State’s case that in this instance appellant desired to .secure the money which he had embezzled by giving prosecutor a deed to his homestead, or delivering to him 100 tons of hay. If appellant had stated some fact that he could prove by his wife,—as that she was present when the money was turned over by the prosecutor, Miller, to her husband, Dancy, and heard the terms of the agreement, or that the prosecutor, Miller, told her what the terms of the agreement were,—then her testimony might appear to be material. But in this respect the application merely states a conclusion, to wit, that the money appellant is charged to have embezzled ■ was furnished by said Miller for the purpose of carrying on a saloon business in connection with the defendant. If we were permitted to recur to the statement of facts to help out this application, that would show, by appellant’s own testimony, that the witness Lottie Dancy was not present when the money he is charged to have embezzled was delivered to him by Miller, the prosecutor, and the agreement' made. He states that this was not at his home, but at his cousin Barbara’s house. It does not occur to us that the first portion of the testimony expected to he proved by the absent witness was material; and, furthermore, that the remainder of the testimony proposed to he proved by the absent witnesses was not of any fact, hut was a mere conclusion stated; and, in addition to this, it does not occur to us that, if the witness had been present, and would have testified as stated, it would have been regarded by the jury, in the light of the other testimony in the case, as - probably true, or that it would have had any effect on their verdict.
The second and third hills of exception raise the question as to the admissibility of Auerbach’s testimony as to the payment made by appellant on the 31st day of January, 1898, of $75. Appellant says that this testimony was irrelevant, but he does not show how it was irrelevant. Evidence may be relevant as bearing directly on the issue, or it may be relevant as bearing on some collateral issue, which itself bears or serves to solve the main issue. Apparently, judging from the bill itself, the testimony is not irrelevant. If we recur to the statement of facts, the testimony in regard to the payment of this $75 has a bearing on the intent of appellant with reference to the embezzlement of the $300 delivered to him by the prosecutor on the 10th of January, 1898. Besides this, the testimony in regard to the $300, and its disposition, delivered by appellant on the 30th of January, 1898, was introduced into the case by the defendant himself. (See cross-examination of Miller.) Appellant himself testified with reference to the $300 that Miller paid to him on the 30th, some twenty days after the delivery of the $300, for the purpose of putting in a lunchstand, and as indicating the course of business between him and the prosecutor, Miller. The State’s testimony, on the contrary, showed, or tended to show, that this $300 was received as the previous $300 had been received,—that is, for the purpose of buying cattle by appellant for Miller; and further tended to show that $75 of the $300 was at once appropriated by appellant, not to purchasing cattle, but to the payment of his private debt to Auerbach. This evidence having been introduced by appellant, he could not complain that the case showed a different disposition of same than that testified to by him. Moreover, if it had not been introduced by appellant, it was perfectly competent evidence as tending to show the mode of dealing between the parties, and that this money, though paid to appellant by Miller for the same purpose for which the $300 charged to have been embezzled was paid, was itself misappropriated by appellant, and as tending to show appellant’s intent in regard to the money charged to have been embezzled, and to rebut appellant’s defensive theory; and it was properly limited in the charge of the court.
In connection with appellant’s third bill, on the subject of Auerbach’s testimony, he appends the affidavits of certain jurors to show how they regarded said testimony, and that on account of said evidence they were induced to find the verdict against appellant. Affidavits of this sort are not allowable. Jurors should not be permitted to show by their affidavits that they ignored and disregarded the charge of the court in considering the evidence. Under the eighth subdivision of article 817, Code of Criminal Procedure, affidavits are allowed on the part of the jurors to impeach their verdicts. This is relative to the misconduct of the jury, and appears to be an exception to the general rule. While, in general terms, the failure of the jury to'be controlled by the charge of the court might, in a certain sense, be considered misconduct, yet this is not the character of misconduct contemplated
by the statute. The rule on this subject is stated in Little v. Birdwell,
21
Texas, 597. We quote from that opinion as follows: “The genérally received doctrine is that the affidavits of jurors shall not be received to impeach their verdict; and for the obvious reason that it would open a door for tampering with jurors, and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under the sanction of an oath. The subject was very fully examined in the case of State v. Freeman, 5 Connecticut, 348, and, after reviewing the authorities, the court concluded that ‘almost the whole legal world is adverse to the reception of the testimony in question [that of the jurors who tried the case], and on invincible foundations.’ In Graham & Waterman on New Trials it is said: ‘It is admitted, notwithstanding a few adjudications to the contrary, that it is now well settled, both in England, and, with the exception of Tennessee, perhaps in every State of this confederacy, that such affidavits can not be received; and, we believe, upon correct reasoning.’ 3 Grab. & W. New Trials, 1429. The numerous cases there collected and reviewed confirm the observation. In Tennessee, where the affidavits of jurors are admitted to impeach their verdict, it is said they must be received with great caution. Saunders v. Fuller, 4 Humph., 516. In Ohio it is said they are npt, in general, admissible for that purpose, and can only be received under certain circumstances, where a foundation has been first laid by other evidence. Farrer
v.
State, 2 Ohio St., 54. The better opinion is that they ought not, in general, to be admitted to impeach the verdict, and, if received at all for that purpose, it ought only to be under special circumstances-The course of decision in this court has been decidedly to discountenance applications for new trials founded on the affidavits of jurors, and the consequence is that few cases of this kind have occurred in our practice. Kilgore v. Jordan, 17 Texas, 341; Mason v. Russel’s Heirs, 1 Texas, 726; Campbell v. Skidmore, Id., 475.”
Appellant contends that the charge of the court brought too prominently before the jury the State’s theory, and omitted to properly present the defendant’s theory; and he particularly insists that the court’s charge required defendant to actually invest..the money in the saloon before they should acquit him. We have examined the court’s charge as complained of, and find it full and fair; andy as stated by the court, it does not bear out appellant’s contention. By reference to subdivision 5, complained of, the jury were distinctly instructed to acquit defendant if they believed that the money was loaned to' defendant by Miller for any purpose for a consideration to be paid in interest or in part of the profits resulting from the investment in the butcher business or in the beer saloon. This was in accord with defendant’s theory and evidence.
The charge of the court limiting the purpose of the testimony is not obnoxious to the objection that it was upon the weight of the evidence. ■
The misconstruction or misapprehension on the part of the jury of the charge of the court affords no ground for reversal. Johnson v. State, 27 Texas, 758; Rockhold v. State, 16 Texas Crim. App., 577. There being no error in the record, the judgment is affirmed.
Affirmed.