KRUEGER, Judge.
— The appellant was tried and convicted of murder and his punishment was assessed at death.
The record shows that in January, A. D. 1934, the appellant and the deceased were legally married to each other and lived together as husband and wife until some time in the month of May of said year, when they separated; that during the time they lived together and after- their separation, up to the time of the fatal evening, they had frequent quarrels which at times resulted in personal combats. On the evening of March 6, A. D. 1935, appellant and deceased met on Avenue K in the city of Galveston where the alleged homicide occurred. The State’s testimony differs materially from that offered by appellant as to the immediate cause of the difficulty between appellant and deceased.
The testimony adduced by the State shows that while the
deceased, accompanied by two other women, was walking along Avenue K the appellant overtook her and inquired of her why she had not done what he had asked her to do, to which she replied, “What?”; whereupon appellant took hold of her and began stabbing her with a knife from the effects of which she died a few minutes later. The appellant’s version of the affair is that he was on his way to visit his mother; that he met the deceased and one Jewel Halson on Avenue K; that deceased asked, “How come you did not let me know you had done got out of the hospital?”, to which he replied, “You didn’t have to know it”; that she then asked where he was going and he said, “I am going out to Mamma’s.” Whereupon Jewel Halson said, “He is going to see his woman.” After this remark, the deceased unrolled a handkerchief and took therefrom a black razor and began to cut at him. He ran back and she pursued him with the razor, cutting at him as she went. He suddenly turned, grabbed her, and began stabbing her to prevent her from cutting him. After he had stabbed her, she dropped the razor which was picked up and carried into the house by Jewel.
By bill of exception number one appellant complains of the testimony of Dr Williams concerning an injury to the hand of Florence Wright. The testimony should" not have been admitted over the objection of appellant. However, the record shows that' Florence Wright was permitted to testify to the same facts without objection. Under such circumstances the error was harmless. This court has held by an almost unbroken line of authorities that when testimony similar to that objected to has been admitted without objection, the objectionable testimony will not be cause for reversal. See Sparkman v. State, 82 S. W. (2d) 972; Enix v. State, 112 Texas Crim. Rep., 376; Pryor v. State, 225 S. W., 374.
The testimony of L. Kraus, a policeman, complained of in bill of exception number four showed that in the month of August of the preceding year, he was called to a drug store to quell a disturbance, that upon arrival at the drug store deceased informed him, in the presence of appellant, that appellant .had threatened to kill her. This testimony was admissible to show ill-will and malice, but the balance of the testimony as to what he, the policeman, did and said was subject to an objection. However, the bill shows that appellant made a general objection which went to the entire testimony of said witness. The general rule is that when part of given testimony is admissible and part is not, the appellant is required to direct a specific objection to the inadmissible part thereof or
otherwise the objection will be of no avail. See Ghent v. State, 176 S. W., 566; Tubb v. State, 55 Texas Crim. Rep., 623.
The matter complained of in bill of exception number five seems to have been taken care of by the court as disclosed by his qualification to said bill.
The most serious question presented by appellant relates to the misconduct of the jury as disclosed by his motion for a new trial in which he contends that after the jury had retired and deliberated upon the case until eleven P. M. without having reached a verdict they went to town for a cup of coffee; that there they learned that a prison break had occurred at the Eastham state prison farm; that a guard had been killed and one Lutlow, a prisoner from Galveston County, together with several other long-term prisoners had escaped; that the jury misused this information to the prejudice of appellant.
The court upon a hearing of the motion also heard testimony of four jurors; two testifying at the instance of the appellant and two at the instance of the State. A. B. Crow, the first juror called, testified that about eleven P. M. and before they had agreed upon a verdict, they went to town for a cup of coffee; that while at the cafe they learned that a prison break had taken place that day at the Eastham state prison farm; that a guard was killed and that Lutlow with several other long term prisoners had escaped; that after they returned to the jury room and again began their deliberations Mr. Bleimeyer, the strongest contender for the death penalty said:
“A
man who instead of being given the death penalty is sent to the penitentiary for life frequently escapes or is liable to escape and for that reason the jury ought to give the death penalty rather than life imprisonment.”
Harry Joyce testified that at the time they went to get a cup of coffee the jury stood seven for the death penalty and five for life imprisonment; that on their way back to the courthouse they passed a news stand and saw from the headlines in the newspapers that a prison break had occurred, a guard had been killed, and several long term prisoners had escaped; that after they again began their deliberations Bleimeyer said: “Why, you see what happened there today in the paper about breaking out of prison and shooting a guard. That is just exactly what will happen if we send this nigger to the penitentiary. He won’t be up there over a year and he will be doing the same thing.”
Mr. Robinson, being called "by the State, testified: “On our way back from the cafe Mr. Burke, the deputy sheriff, said to
me that Lutlow had gotten away that day. I said, ‘That is a bad man outside,’ that is all that was said. I would not attempt to say that I heard all the discussion between the members of the jury. I voted for the death penalty from the beginning.”
Ray Crow testified that he did not see the headlines in the newspapers; that he did not hear Mr. Burke, the deputy sheriff, make any mention of Lutlow’s escape, but that on their way from the cafe to the courthouse he heard a .prison break had occurred that day and Lutlow had escaped.
Neither Mr. Burke, the deputy sheriff, nor Mr. Bleimeyer were called to explain or deny the alleged misconduct. Art. 753, C. C. P., provides that where the jury, after having retired to deliberate upon a case, have received other testimony; or where on account of the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial, a new trial shall be granted. It has been held frequently that a statement by one juror to his fellow jurors of a fact within his personal knowledge, which was not developed at the trial, is misconduct and a new trial should be granted unless the presumption of injury arising therefrom is rebutted by evidence.
In the case of Weaver v. State, 85 Texas Crim.
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KRUEGER, Judge.
— The appellant was tried and convicted of murder and his punishment was assessed at death.
The record shows that in January, A. D. 1934, the appellant and the deceased were legally married to each other and lived together as husband and wife until some time in the month of May of said year, when they separated; that during the time they lived together and after- their separation, up to the time of the fatal evening, they had frequent quarrels which at times resulted in personal combats. On the evening of March 6, A. D. 1935, appellant and deceased met on Avenue K in the city of Galveston where the alleged homicide occurred. The State’s testimony differs materially from that offered by appellant as to the immediate cause of the difficulty between appellant and deceased.
The testimony adduced by the State shows that while the
deceased, accompanied by two other women, was walking along Avenue K the appellant overtook her and inquired of her why she had not done what he had asked her to do, to which she replied, “What?”; whereupon appellant took hold of her and began stabbing her with a knife from the effects of which she died a few minutes later. The appellant’s version of the affair is that he was on his way to visit his mother; that he met the deceased and one Jewel Halson on Avenue K; that deceased asked, “How come you did not let me know you had done got out of the hospital?”, to which he replied, “You didn’t have to know it”; that she then asked where he was going and he said, “I am going out to Mamma’s.” Whereupon Jewel Halson said, “He is going to see his woman.” After this remark, the deceased unrolled a handkerchief and took therefrom a black razor and began to cut at him. He ran back and she pursued him with the razor, cutting at him as she went. He suddenly turned, grabbed her, and began stabbing her to prevent her from cutting him. After he had stabbed her, she dropped the razor which was picked up and carried into the house by Jewel.
By bill of exception number one appellant complains of the testimony of Dr Williams concerning an injury to the hand of Florence Wright. The testimony should" not have been admitted over the objection of appellant. However, the record shows that' Florence Wright was permitted to testify to the same facts without objection. Under such circumstances the error was harmless. This court has held by an almost unbroken line of authorities that when testimony similar to that objected to has been admitted without objection, the objectionable testimony will not be cause for reversal. See Sparkman v. State, 82 S. W. (2d) 972; Enix v. State, 112 Texas Crim. Rep., 376; Pryor v. State, 225 S. W., 374.
The testimony of L. Kraus, a policeman, complained of in bill of exception number four showed that in the month of August of the preceding year, he was called to a drug store to quell a disturbance, that upon arrival at the drug store deceased informed him, in the presence of appellant, that appellant .had threatened to kill her. This testimony was admissible to show ill-will and malice, but the balance of the testimony as to what he, the policeman, did and said was subject to an objection. However, the bill shows that appellant made a general objection which went to the entire testimony of said witness. The general rule is that when part of given testimony is admissible and part is not, the appellant is required to direct a specific objection to the inadmissible part thereof or
otherwise the objection will be of no avail. See Ghent v. State, 176 S. W., 566; Tubb v. State, 55 Texas Crim. Rep., 623.
The matter complained of in bill of exception number five seems to have been taken care of by the court as disclosed by his qualification to said bill.
The most serious question presented by appellant relates to the misconduct of the jury as disclosed by his motion for a new trial in which he contends that after the jury had retired and deliberated upon the case until eleven P. M. without having reached a verdict they went to town for a cup of coffee; that there they learned that a prison break had occurred at the Eastham state prison farm; that a guard had been killed and one Lutlow, a prisoner from Galveston County, together with several other long-term prisoners had escaped; that the jury misused this information to the prejudice of appellant.
The court upon a hearing of the motion also heard testimony of four jurors; two testifying at the instance of the appellant and two at the instance of the State. A. B. Crow, the first juror called, testified that about eleven P. M. and before they had agreed upon a verdict, they went to town for a cup of coffee; that while at the cafe they learned that a prison break had taken place that day at the Eastham state prison farm; that a guard was killed and that Lutlow with several other long term prisoners had escaped; that after they returned to the jury room and again began their deliberations Mr. Bleimeyer, the strongest contender for the death penalty said:
“A
man who instead of being given the death penalty is sent to the penitentiary for life frequently escapes or is liable to escape and for that reason the jury ought to give the death penalty rather than life imprisonment.”
Harry Joyce testified that at the time they went to get a cup of coffee the jury stood seven for the death penalty and five for life imprisonment; that on their way back to the courthouse they passed a news stand and saw from the headlines in the newspapers that a prison break had occurred, a guard had been killed, and several long term prisoners had escaped; that after they again began their deliberations Bleimeyer said: “Why, you see what happened there today in the paper about breaking out of prison and shooting a guard. That is just exactly what will happen if we send this nigger to the penitentiary. He won’t be up there over a year and he will be doing the same thing.”
Mr. Robinson, being called "by the State, testified: “On our way back from the cafe Mr. Burke, the deputy sheriff, said to
me that Lutlow had gotten away that day. I said, ‘That is a bad man outside,’ that is all that was said. I would not attempt to say that I heard all the discussion between the members of the jury. I voted for the death penalty from the beginning.”
Ray Crow testified that he did not see the headlines in the newspapers; that he did not hear Mr. Burke, the deputy sheriff, make any mention of Lutlow’s escape, but that on their way from the cafe to the courthouse he heard a .prison break had occurred that day and Lutlow had escaped.
Neither Mr. Burke, the deputy sheriff, nor Mr. Bleimeyer were called to explain or deny the alleged misconduct. Art. 753, C. C. P., provides that where the jury, after having retired to deliberate upon a case, have received other testimony; or where on account of the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial, a new trial shall be granted. It has been held frequently that a statement by one juror to his fellow jurors of a fact within his personal knowledge, which was not developed at the trial, is misconduct and a new trial should be granted unless the presumption of injury arising therefrom is rebutted by evidence.
In the case of Weaver v. State, 85 Texas Crim. Rep., 111, in which reference is made to the Kannmacher case, 51 Texas Crim. Rep., 118, by this court: “wherein it is held that proof that one of the jurors was not originally in favor of the death penalty but consented to it because the jurors thought that wholesale killings in the county should be stopped, and that the death penalty should be inflicted to effect that purpose, was of such material character as to require a reversal.” In the instant case the juror Bleimeyer urged his fellow jurors to impose the death penalty upon appellant to prevent future prison breaks and the killing of guards which would happen, if the defendant’s punishment was assessed at life imprisonment, before he was there over a year. This was an unfavorable reflection on the defendant’s character and imputed to him a bad reputation by one of the jurors, whose language would indicate that he had independent knowledge thereof. In the case of Mason v. State, 16 S. W., 766, a conviction of arson was reversed because of a discussion by the jury in their retirement of the burning in the same community of other buildings by unknown parties. We think that this case also falls within the rule announced by this court on a motion for a rehearing in the case of Snow v. State, 91 Texas Crim. Rep., 1.
It is our opinion that the testimony adduced at the hearing of the motion for a new trial based upon alleged misconduct of the jury showed that the jury in their deliberations discussed the reported prison break, the killing of a guard, and that one of the jurors asserted that appellant would not be there over a year before he would be doing the same thing. This was indirectly, if not directly, imputing to appellant a bad reputation which was highly prejudicial to him, and this was not controverted by the State. Of course, the testimony of the two jurors introduced by the State is to the effect that they did not hear such remarks made in the jury room, but no one denied that it took place as shown by the testimony offered by the defendant; hence we are constrained to believe that it did occur and was used by the jury to the detriment of appellant. Therefore the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.