# Jones v. State

> Court of Criminal Appeals of Texas · January 22, 1913 · 69 Tex. Crim. 447

URL: https://www.frixlaw.com/law-library/cases/3911237

## Case

- **Full name:** John Jones v. State.
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 22, 1913
- **Citations:** 69 Tex. Crim. 447; 153 S.W. 897; 1913 Tex. Crim. App. LEXIS 132
- **Precedential status:** Published
- **Opinion:** Dissent by Davidson
- **Judges:** Davidson, Prendergast
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3911237

## Opinion text

DAVIDSON, Presiding Judge
(dissenting).—There are several questions in the case that perhaps ought to require a reversal of the judgment. It occurs to me defendant has not had the fair and impartial trial that the law justifies him in asking and demanding of the State to award him. I desire, however, to enter some reasons for dissenting on one of the propositions.
A bill of exceptions shows that after the jury had been examined on their voir dire by both sides touching their qualifications as jurors, and nine of the number had been accepted by both sides as jurors in the case, but had not been sworn to try the ease, the court permitted them to separate and go to their respective places of business or where they desired. This occurred at 11:15 o ’clock in the morning and they remained separated until 2 o ’clock p. m. unaccompanied by an officer, and when court convened at 2 o’clock p. m. and all of said nine jurors had returned to their place in the courtroom, defendant in open court made a motion to quash the jury panel on the ground that the court had allowed them to separate, which they did, going where they choosed unaccompanied by an officer, and farther because they had scattered and separated and had not been kept together in charge of an officer. All these matters were overruled and defendant excepted to the ruling of the court for the reasons stated. The court qualified this bill by stating that he “could not find where it had ever been held in Texas that jurors are to be held in custody by the sheriff until they are empaneled and sworn. In capital eases, of course, they are sworn and impaneled as each is accepted. I instructed the jury not to speak to anyone about the case or allow anyone to appeal to them during the recess. I want the upper court to direct whether a jury ,uiiust be confined over
*454
night or at recess before the jury is completed or before any of them are sworn to try the case. ’ ’ This qualification is signed by the district judge who tried the case.
Another bill presents the matter in this form: After the court had permitted nine of the jurors selected by the State and defendant, as jurors to try the cause, to separate and go where they desired unaccompanied by an officer from 11:15 a. m. until 2 p. m. and after the court had in all things overruled the defendant’s motion to quash the jury panel, and defendant’s challenge of said nine jurors for cause, the defendant then in open court made his challenge for cause to each of the said nine jurors and challenged them separately for cause on the grounds that they had been permitted to separate from 11:15 a. m. until 2 p. m. and go in different directions unaccompanied by an officer, which motion to challenge each of said nine jurors separately the court overruled and compelled the defendant to accept said nine jurors as jurors to try the cause. This bill is signed without qualification.
Another bill recites that after counsel for both parties had struck their lists and accepted the nine jurors specified to try the case, the court permitted them to separate and go to their respective places of business or wherever they saw proper to go from 11:15 o’clock a. m. until 2 o’clock p. m. unaccompanied by an officer, and after the court, when it reconvened at 2 o’clock p. m., had overruled defendant’s motion to quash the jury panel, the defendant then challenged all of the jurors for cause for the reason that said nine jurors had been permitted to go in different directions and where they choosed from 11:15 a. m. until 2 p. m. unaccompanied by an officer. This was overruled and the bill signed.
This whole matter is presented in these three different forms by appropriate bills of exception. This question was decided by this court adversely to the decision of thé trial court in Wilcek v. State, 141 S. W. Rep., 88 . In the opinion written by Judge Prendergast the Wilcek opinion is overruled, and it is stated that that opinion was “inadvertently” written. The writer of this dissent wrote the opinion in the Wilcek case, and the opinion was written after careful thought and not through inadvertence so far as the writer is concerned. Reviewing the question again in the light of the opinion of my brethren and of the authorities, I am still of the opinion that the opinion in the Wilsek case is correct. It has been laid down in the authorities in Texas and elsewhere, that the separation of the jury, especially under the mandatory provision of the statute, is reversible error, and where the jury has been sworn it is provided so by statute expressly. It has further been held that with reference to the procurement of jurors generally, if the statutory provisions as to the formation of the jury are of a mandatory character, noncompliance therewith will invalidate the proceedings. This is the rule wherever the statutes so enact. For collation of authorities, see
*455
note 1, page 525, Vol. 12 Ency. of Pleading and Practice. It is also the rule where by statute the jurors in the trial of an indictment for a felony áre expressly forbidden to separate, unless by permission of the court and the consent of the defendant, and then only in the custody of an officer, the court cannot permit a separation over the objection of the defendant irrespective of the question of prejudice or injury. Defriend v. State, 22 Texas Crim. App., 570; Robinson v. State, 30 Texas Crim. App., 459; Grissom v. State, 4 Texas Crim. App., 374; Cox v. State, 7 Texas Crim. App., 1; Early v. State, 1 Texas Crim. App., 248; Wright v. State, 17 Texas Crim. App., 152; Walker v. State, 37 Tex. 366 . Our statute forbidding the separation of jurors in felony cases, unless under conditions therein prescribed, is mandatory, and where jurors have become separated from an officer who has taken them from the main body, there must be a new trial. Warren v. State, 9 Texas Crim. App., 619. Disregard of a mandatory provision that the jurors shall not be permitted to separate without the consent of the defendant will require a reversal of a conviction. State v. Place, 5 Wash., 773 ; State v. Smith, 102 Iowa, 656 ; State v. Garrity, 98 Iowa, 101 . In Texas the jury cannot be permitted to separate except by the consent of the accused. Some of the eases cited have been after the jury had been impaneled and sworn, but in the Wilcelc case, supra, the precise question raised in this case was there decided as being of a mandatory nature and, therefore, reversible, and the judgment was reversed for that reason. In the ease of Hines v. State, 27 Tenn., 597 , this view was sustained in an.opinion by Judge Nathan Green, he delivering the opinion for the court. He uses some language that is well worthy of consideration. In that ease the jury had separated before being sworn and impaneled as in this case. Without repeating the facts, which are shown in the opinion itself, he says:
“It is of the utmost importance to the administration of justice, that the purity of the trial by jury should be preserved. And so jealous were our ancestors upon the subject, that a separation of a juror from his fellows, was regarded per se, as sufficient to vitiate the verdict. It was not deemed competent for the prosecution to explain the conduct of the juror, and to show that he had not been tampered with. But this extreme strictness, has been relaxed in England, and most of the states of the Union; and as is justly remarked in Stone vs. The State, (4 Humph. R., 27,) by the judge who delivered the opinion; ‘the purity of jury trials is now made to depend, not on form, but substance. ’ Still, in that case, and in the case of McLain vs. The State, 10 Yerg. R. 241, it is held, that to ensure to the accused, ‘the full benefit of the judgment of his peers, it is absolutely necessary that the minds of the jurors, should not have prejudged his case; that no impression should be made except what is drawn from the testimony given in court, to operate on them; and that to secure this, they must not be permitted to separate and
*456
mingle with the balance of the community, without explanation, showing that they had not been tampered with, and that it is not necessary for the prisoner to prove, that .they had been. ’
“The principles laid down in these cases are, 1. That the fact of separation having been established by the prisoner, the possibility that the juror has been tampered with, and has received other impressions - than those derived from the testimony in court, exists, and prima facie, the verdict is vicious; but 2nd. This separation may be explained by the prosecution, showing that the juror had no communication with other persons, or that such communication was upon subjects foreign to the trial, and that in fact, no impressions, other than those drawn from the testimony, were made upon his mind. 3rd. In the absence of such explanation, the mere fact of separation is sufficient ground for a new trial. Taking these principles as the settled law of this court—the question is, whether the separation of the juror, McNeely, is satisfactorily explained. And we think it is not. The only witness who gives any explanation whatever, is the offending juror.”
In this case the separation is shown with the consent of the court but without the consent of the defendant. The defendant insisted upon the reassembling of the jury that the panel be quashed, and, second, he excepted and challenged each of the nine jurors specifically for the reasons he gave at the time set out in bill of exceptions, and third, he challenged all nine of the jurors who had separated. This was not met or attempted to be met with any fact showing they had not talked or conversed with people about the case. As the writer understands the jury trial in its essence means the accused shall have a fair trial by an impartial jury; at least such is the provision of the Bill of Rights as set forth in the Constitution. If any juror has been tampered with it vitiates the verdict under all the authorities, and this without a separation. But the keeping of the jury together is based mainly upon the proposition, that having been segregated they are immune from the possibility of contamination from the outside world, and from this view it would make no difference whether it was after or before they were sworn. Whether he was sworn or not would not prevent the outsider from talking with him or he with the outsider, and it occurs to me the reasons would be stronger why he should not be subject to contamination after being segregated as a juror in the case before being sworn than he would be after he had been sworn, because after having been sworn, after segration, he is then supposed to be in charge of an officer and beyond reach of contamination, but in the other he is turned loose where he may meet everybody coming and going, and these jurors were permitted to go without an officer and without the consent of the defendant and over his protest by means of said challenge, from 11:15 a. m. until 2 p. m., and not a word came from them as to whether or not they had been approached by others on the outside.
*457
If the separation o^ the jury means anything, it occurs to me that this case is strongly in point under our statutory law and under our Constitution as it is well to place one. If the rule underlying the doctrine of separation of the jury is to prevent contamination, then this was a grievous violation of the entire doctrine. I think the Wilcek case is correct. Our statutes are mandatory that the separation of the jury shall not occur after it had been once set apart and it is thus signified to the world that these are the jurors in this particular case, and the mere fact that they were or were not sworn would not depreciate the probable injury that might occur, nor the reason why a separation should not occur.
These are some of the reasons I cannot agree with my brethren and therefore respectfully enter my dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3911237. Public record. Not legal advice.