SIMKINS, Judge.
Appellant was convicted of murder in the first degree, and his punishment' assessed at imprisonment for life.
1. Appellant contends, that the court erred in refusing to charge that Mrs. Lona Humphreys was an accomplice to the murder of her husband. The evidence shows that no one was present at the murder of her husband but appellant and Mrs. Humphreys; that after the
homicide'Mrs. Humphreys went one-half mile to her brother’s house and told him that two strange men had come into the house and killed bim with the axe. Mrs. Humphreys said she made this statement because she was afraid of appellant, and believed that he was close by to hear what she said; that he told her what to say, and she feared to make any other statement until she could get to the officers of the law. If the criminal connection with the unlawful act is an admitted fact, the court may charge that the party so connected is an accomplice, and should be corroborated. If, however, there is any question about it, then it should be left to the jury to say whether the witness is an accomplice. In Zollicoffer’s case, 16 Texas Criminal Appeals, 317, where it was contended that the court should have directly charged the jury that the witness Green was an accomplice, the evidence being so conclusive of that fact, the court says: “Whilst it would not, under some facts, be improper for the court in its charge to assume and instruct the jury that the witness is an accomplice, still we do not think it is error to submit the question to the jury.” White’s case, 30 Texas Crim. App., 657; Freeman’s case, 11 Texas Crim. App., 92; Elizando’s case, 31 Texas Crim. Rep., 237. The charge fully instructed the jury on this question, and the court did not err in refusing the requested charges.
2. Appellant further contends, that the court below erred in not granting a new trial upon the ground that the jury read the daily newspapers, which contained incorrect accounts of the testimony adduced on the trial. This ground of the motion was sustained by the affidavit of John Baker, one of the jurors, who states that he saw two of the jurors reading the page of the Daily Greenville Herald containing a synopsis of the evidence adduced on the trial. This was after the evidence had gone to the jury, and before they had rendered a verdict. The evidence as reported in the newspaper is copied in the transcript, and, after a careful comparison with the agreed testimony, we are unable to appreciate the objection that the newspaper report of the evidence was incomplete or inaccurate, nor has counsel in his brief pointed out any inaccuracy. So far as we are able to gather from the transcript, there is nóthing in the report, nor in the paper itself, which in the slightest degree indicated the drift of public opinion as to appellant’s guilt or innocence, nor is any prejudice or bias for or against appellant shown in any comment therein, and it contained no fact that was not introduced in the evidence on the trial. While it is true that where a newspaper contains prejudicial reports of the trial, or comments on the case or the persons or character of those connected therewith (Walker’s case, 37 Texas, 389), or where it contains matter calculated to influence the verdict (People v. Murray, 24 Pac. Rep., 666), the verdict should be set aside; yet when there is nothing in the newspaper statement of the evidence calculated in any
way to affect the rights of defendant, while it is not proper to admit it to the jury, still it should not vitiate the verdict. United States v. Reid, 12 How., 366; State v. Cucuel, 31 N. J. Law, 263; 12 Am. and Eng. Encyc. of Law, 373. It is not receiving additional evidence. Penal Code, art. 777; Willson’s Crim. Stats., sec. 2545. Nor does the fact that one of the headlines of the report states that ‘'defendant was not placed on the stand” render the reading of the report by the two jurors fatal to the verdict. It merely stated a fact already known to the jury. The inhibition upon counsel in the case alluding to defendant’s failure to testify is statutory (Acts 21st Leg., 37), and it is for that reason we reverse cases where the statute is violated, even though the error was harmless.
3. Appellant further complains, that the jury were probably influenced by the fact that appellant after his arrest attempted to commit suicide by cutting his throat, and that the matter was referred to in the jury room. The record shows that the State offered to prove this fact, but it was promptly excluded by the court, who instructed the jury to disregard the matter; that after the jury retired the matter was again referred to and stated to be true, when the foreman warned the jury that they must not consider the matter, as it was not introduced in testimony, and all the jury agreed that it should not be considered. We think that the record fails to show that the jury were influenced by the statement. On the contrary, the affidavit of a juror who stated the facts further states he did not believe the jury were influenced thereby, and this is corroborated by the affidavit of the foreman.
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SIMKINS, Judge.
Appellant was convicted of murder in the first degree, and his punishment' assessed at imprisonment for life.
1. Appellant contends, that the court erred in refusing to charge that Mrs. Lona Humphreys was an accomplice to the murder of her husband. The evidence shows that no one was present at the murder of her husband but appellant and Mrs. Humphreys; that after the
homicide'Mrs. Humphreys went one-half mile to her brother’s house and told him that two strange men had come into the house and killed bim with the axe. Mrs. Humphreys said she made this statement because she was afraid of appellant, and believed that he was close by to hear what she said; that he told her what to say, and she feared to make any other statement until she could get to the officers of the law. If the criminal connection with the unlawful act is an admitted fact, the court may charge that the party so connected is an accomplice, and should be corroborated. If, however, there is any question about it, then it should be left to the jury to say whether the witness is an accomplice. In Zollicoffer’s case, 16 Texas Criminal Appeals, 317, where it was contended that the court should have directly charged the jury that the witness Green was an accomplice, the evidence being so conclusive of that fact, the court says: “Whilst it would not, under some facts, be improper for the court in its charge to assume and instruct the jury that the witness is an accomplice, still we do not think it is error to submit the question to the jury.” White’s case, 30 Texas Crim. App., 657; Freeman’s case, 11 Texas Crim. App., 92; Elizando’s case, 31 Texas Crim. Rep., 237. The charge fully instructed the jury on this question, and the court did not err in refusing the requested charges.
2. Appellant further contends, that the court below erred in not granting a new trial upon the ground that the jury read the daily newspapers, which contained incorrect accounts of the testimony adduced on the trial. This ground of the motion was sustained by the affidavit of John Baker, one of the jurors, who states that he saw two of the jurors reading the page of the Daily Greenville Herald containing a synopsis of the evidence adduced on the trial. This was after the evidence had gone to the jury, and before they had rendered a verdict. The evidence as reported in the newspaper is copied in the transcript, and, after a careful comparison with the agreed testimony, we are unable to appreciate the objection that the newspaper report of the evidence was incomplete or inaccurate, nor has counsel in his brief pointed out any inaccuracy. So far as we are able to gather from the transcript, there is nóthing in the report, nor in the paper itself, which in the slightest degree indicated the drift of public opinion as to appellant’s guilt or innocence, nor is any prejudice or bias for or against appellant shown in any comment therein, and it contained no fact that was not introduced in the evidence on the trial. While it is true that where a newspaper contains prejudicial reports of the trial, or comments on the case or the persons or character of those connected therewith (Walker’s case, 37 Texas, 389), or where it contains matter calculated to influence the verdict (People v. Murray, 24 Pac. Rep., 666), the verdict should be set aside; yet when there is nothing in the newspaper statement of the evidence calculated in any
way to affect the rights of defendant, while it is not proper to admit it to the jury, still it should not vitiate the verdict. United States v. Reid, 12 How., 366; State v. Cucuel, 31 N. J. Law, 263; 12 Am. and Eng. Encyc. of Law, 373. It is not receiving additional evidence. Penal Code, art. 777; Willson’s Crim. Stats., sec. 2545. Nor does the fact that one of the headlines of the report states that ‘'defendant was not placed on the stand” render the reading of the report by the two jurors fatal to the verdict. It merely stated a fact already known to the jury. The inhibition upon counsel in the case alluding to defendant’s failure to testify is statutory (Acts 21st Leg., 37), and it is for that reason we reverse cases where the statute is violated, even though the error was harmless.
3. Appellant further complains, that the jury were probably influenced by the fact that appellant after his arrest attempted to commit suicide by cutting his throat, and that the matter was referred to in the jury room. The record shows that the State offered to prove this fact, but it was promptly excluded by the court, who instructed the jury to disregard the matter; that after the jury retired the matter was again referred to and stated to be true, when the foreman warned the jury that they must not consider the matter, as it was not introduced in testimony, and all the jury agreed that it should not be considered. We think that the record fails to show that the jury were influenced by the statement. On the contrary, the affidavit of a juror who stated the facts further states he did not believe the jury were influenced thereby, and this is corroborated by the affidavit of the foreman.
4. The evidence in the case was peculiarly a question for the jury. If Mrs. Humphreys, the principal witness for the State, is to be believed, appellant was guilty of a fearful murder. If the witnesses for the defense are to be believed, appellant was at the time of the murder lying ill at his brother’s house, one and a half miles away, and is innocent, and Mrs. Humphreys herself is the guilty party. The motive for killing Humphreys was very strong on the part of appellant. Humphreys had abandoned his wife some three years before, and appellant shortly after went to live with' her and carried on the farm. A suit for divorce was pending, brought by Mrs. Humphreys against her absent husband, and she promised to marry appellant. Suddenly Humphreys made his appearance and begged to be taken back. After two months’ probation she agreed to take him back. This determination, as disclosed by the record, seems to have much affected appellant. He spoke of selling out and leaving the country, saying he was now foot-loose and out of a job, and the night before the homicide spoke so bitterly of the deceased, and seemed so restless, that a witness at whose house he was begged him not to have a difficulty with deceased. But he insisted on returning
“borne” (to Mrs. Humphreys’) that night. On Friday evening he left Mrs. Humphreys’ to go to his brother’s, who lived one and a half miles off, and returned at 11 o’ clock and called to her to open the door, which she did. He said he wanted to get his coat and vest, which he had left there, and requested her to light a lamp. As she did so she heard a noise and saw appellant strike her husband in the head with an axe. The other corroborating facts are not many. The tracks along the road, which are identified as appellant’s, show that he had recently gone twice in the direction of his brother’s house, which corroborated Mrs. Humphreys’ evidence that he went to his brother’s house the evening before and returned at midnight to commit the homicide and then went back to his brother’s, where he was arrested next morning. The spots of blood found on appellant are explained by his family as being caused by nose-bleeding; but if disbelieved on the question of alibi, their explanation was also probably rejected by the jury. As stated, this was peculiarly a question to be settled by the jury. They rejected the appellant’s defense of alibi, and the evidence sustains the verdict.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.