The opinion
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ON REHEARING.
October 8, 1919.
LATTIMORE, Judge.
Appellant has presented his motion for rehearing, contending principally that there is a variance between the stick described in the indictment as the instrument with which the alleged homicide was committed, and the stick exhibited before the jury, and described by the witnesses, and also of misconduct of the jury.
The indictment describes said stick as “three feet and eight inches long, three inches wide, and one inch thick. ’ ’ In claiming a variance, appellant relies upon the well known rule of law, to the effect that there must be a correspondence between the allegation and the proof, and that where a thing necessary to be described in an indictment is described with unnecessary particularity therein, the proof on the trial must correspond in order to be sufficient. Robinson v. State, 60 Texas Crim. Rep., 592 , 132 S. W. Rep., 944 .
We call attention in this connection to the rule which is of equal force and application, that in such case the proof is sufficient if it show that the weapon charged in the indictment, and the one shown by the proof to have been used,' is such that the nature and result of its use is the same or substantially correspond. So it is held that an allegation of homicide with a gun is met by proof of the same with a pistol. Douglas v. State, 26 App., 109 ; also that an allegation of assault with a Winchester rifle, is met by proof of the commission of the same with a Cole’s rifle. Brown v. State, 43 Texas Crim. Rep., 293 ; also that an allegation of death from poison mixed with water, is met by proof of death by poison mixed with coffee. Johnson v. State, 29 Texas Crim. Rep., 150 .
In the instant case the stick exhibited. to the jury and described by the witnesses, is variously estimated at from two and a half to four and a half feet long, an inch thick, and from two and a half to three inches wide.
We think the trial court correctly told the jury that if they believed the, proof showed that the stick used was substantially the same as described in the indictment, that this was sufficient. Holliday v. State, 35 Texas Crim. Rep., 133 ; Chisom v. State, 77 Texas Crim. Rep., 397 , 179 S. W. Rep., 103 ; Section 1589, Branch’s Ann. Penal Code. Nor do we think there was error in permitting the stick to be shown to the jury, as the evidence connecting the same with the homicide was sufficient to take the question of its identity to the jury.
The remaining ground of appellant’s motion, is that we erred in holding that the facts adduced before the trial court in support of the motion for a new trial, did not show that the jury received other
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evidence after its retirement. We have reviewed the statement of facts bearing on this contention, and have come to the conclusion that we were in error in deciding this matter.
It is provided by Art. 837, Vernon’s C. C. P., that in a felony case a new trial shall be granted “where the jury, after having retired to deliberate upon a case, have received other testimony, and it is held that if such testimony be so received and it appear that same is of such nature as that injury may have resulted, and that fact is shown on motion for new trial, this Court will not speculate as to its effect upon the jury, but will reverse the ease. McWilliams v. State, 32 Texas Crim. Rep., 269 ; Mitchell v. State, 36 Texas Crim. Rep., 278 ; McDougald v. State, 81 Texas Crim. Rep., 79 194 S. W. Rep., 944 .
The question for us is; this “Did the jury, after its retirement, receive other testimony than that given on the witness stand?” If this question be answered affirmatively we must reverse the case. The trial court heard the testimony of the jurors
pro
and
con
on this issue, and same is set out in the record before us. The contested question was as to whether juror Lindsay had made statements in the jury room, that certain pretinent facts stated and discussed by him and the other jurors, were true or untrue, because known personally to said juror.
In support of said motion juror, Snead testified:
“I was on the jury that convicted the boy. Before we arrived at a conviction in there there was some right smart discussion how the ground was and where the wagon was and where the light was. I believe Mr. Lindsay made the remark that he knew the location of the church and things down there. After he made that remark he explained in this way how °it was located: If the wagon was located where the testimony showed, he knew from his knowledge where the wagon was, just like I knew it. He never changed me a bit on that. He said he knew where the church was at and the ground. After telling us that I believe he used the table. He said then if the wagon was where they testified it was, he knew what direction it was from the church ... He said if it was at a certain place, he had been there and knew what direction it was from the church and where it was situated. I. think he said something about the ■windows in the church, and he said he knew where they were. He did not say if the wagon was where it was testified, the light would not shine there; I think he said where the light would shine out; he said it would .shine there at the back of the wagon. He did not say anything about where Mrs. Gilbert said it would shine. He
said the light commg out of the window would shine out behind the. ■wagon.
I don’t think it would not shine out on the wagon. He did not say it would not shine there, I don’t think. I think he told us he knew himself where the windows were in the house; I know he
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he said that. He did not say that the light would not shine out and strike the wagon nor that it would, but from the way he located the windows it would not. He showed us where the windows were located, and
from where he located the windows in the house, from ■what he knew of the house himself, the light would shine behind the wagon, and would not shine on the wagon,
I think.”
This witness testified that what was said by Lindsay did not influence him at all, and, further, that he did not know whether Lindsay was talking from his individual memory or from the testimony, but thought it was from the testimony.
Juror Waters testified:
“Mr. Lindsay explained about where the windows were in the house. I know he did. I think he had been there, and knew where the windows and doors were in the house. I think he showed us if the wagon was standing at the place they testified to, how it would be as to the windows, ... It was after he explained about the windows that I said I was satisfied . . . He did explain where the windows were, and explained that; and it was after that that I agreed to a verdict.”
Cross Examination.
“I understood that Mr. Lindsay’s examinations about the windows the way the light would shine, that he was arguing it from what the witnesses said. I did not receive any information and was not goverened by anything said by Mr. Lindsay in the case . .
Examination by the Court.
“I understood that Mr. Lindsay’s examinations about the windows was based on his knowledge gained from the testimony in the court, and
his being acquainted with the place too.
His being acquainted with the place would make him more readily understand it than anybody else.”
Re-Direct Examination.
- “It seems to me like Mr. Lindsay, while talking about the windows, said something about the light would not shine out there where the wagon was, that it would not shine out there because he knew where the windows were himself.”
Juror Cargile testified:
“I was on the jury that convicted Ledger Gilbert. I heard Mr. Lindsay state in the jury room that he was acquainted with all of the parties; he said he knew them all. I did not hear him state what he thought of any of the parties that testified, as to them being honest or truthful or anything that way; if he mentioned that I did not hear him. I did not hear him say how. long he had known them; it was my understanding that he was acquainted with them all. I heard him say he was acquainted with the church and grounds and the location of it. After he said that I think he proceeded to show us how it was located. He showed us where the wagon was standing
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in relation to the church. We were all discussing that and we all wanted to know where the location was, and I think he explained it to us to our satisfaction, if there was any dissatisfaction. I think we all thought we understood exactly where it was, and we wanted to* know for sure. He did not say that the plat that was offered in evidence was backwards, and that he knew how it was himself; if he did, I did not hear it. He did say he was acquainted with the location. He took the table and showed us on the table how the ground was and where the wagon was standing. I suppose he knew that himself. After he explained it, the way he knew it was situated, it was satisfactory to us.”
This witness also stated on cross-examination, in response to questions by the court, that he was not influenced by anything except the testimony of the witnesses, that he understood .Lindsay was explaining matters from testimony and not from his personal knowledge.
Juror Hightower testified as follows:
“While the jury were in the room deliberating on their verdict Mr. Lindsay possibly did show the jury how the ground lay down there and the field and which direction it was, plotting it off on the table and using the table for the north part of the field, while 1 did not understand that he was showing us from what he knew about the field. I asked the question; I was trying to locate the wagon that Mrs. Gilbert was in more to my satisfaction as regards the light that Mr. Inman was carrying, and Mr. Lindsay explained it to me; but I don’t know from what point he was explaining it. I understood it to be from what he understood it to be the witnesses’ testimony. I remember Mr. Lindsay saying he knew the lay of the land down there, but as to some of them speaking up and saying they did not understand how the boy got away and which way he went, and Mr. Lindsay going on to explain the route he went and stating he knew the location himself, I don’t remember that. He did say he understood the lay of the land and was acquainted with the place. After he said that I really don’t know whether he proceeded to show me how it was located or not. I know after he said that I told him what I was trying to find out was the location of the wagon, and he explained that to me. He explained to me where the light was, and he said something about the distance from the church, but I don’t know what he said. He might have stated how far it was from the church to the cemetery and out to the trees where Hugh Inman was; we were mostly all talking at once and lots could have been said that' I did not hear. He did say that he knew the ground and was acquainted with the location and knew where the wagon stood from what they testified, and he proceeded to show where the wagon was . . .” ‘ ‘ I had the one idea in my mind to locate the one wagon if I could. He showed me where the light and wagon was.”
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This juror further stated on cross-examination that he was not influenced by what was said by Mr. Lindsay, .and that he understood that the discussion of the location of the lights, was from the evidence introduced upon the witness stand.
The juror Lindsay, whose statements in the jury room were objected to, also testified in opposition to the motion. He said as follows:
“I did not know, of course, anything about where the wagons stood; I knew that from the witness stand; that is all I could go by. If it stood at the place where some of them testified, I could not help but know from my own knowledge where it was at. Someone asked me the question where Mr. Inman was with the light, how came the question about the windows to spring. They could not locate just where he was, and of course his testimony was there to go by, and I explained from his testimony where he swore he was. From his testimony, if he swore he was at a certain place, I knew where that place was, and I explained it to them according to the testimony. Knowing the ground, I knew about where he was standing.
1 explained to them where he was from Mr. Inman’s testimony and from what I knew of the ground.
Mr. Hightower asked the question, said he could not locate it. I told him where Mr. Inman swore he was. I could not tell you whether I said if he was at that place I knew where- he was, but I was governed by the evidence. The location of the windows was taken up and there was a plat there and I showed them the best I could according to that plat, and explained it, and there was something mentioned about the table, and
I told them hov) the house stood;
of course I could not help but know that. I was acquainted with the location of the windows.”
We have examined the testimony of these witnesses carefully, and our conclusion is that after the jury had retired the juror Lindsay made statements to them of facts stated to be known of his own knowledge. These facts stated as within the knowledge of the juror were not of an irrelevant or immaterial nature or character but were “testimony,” as the word is used in Art. 837, Vernon’s C. C. P.,
supra.
We do not believe it incumbent upon us to speculate as to the effect of such testimony upon the other jurors, nor that a new trial should be denied because they may have stated the same did not have any effect upon them. If it be shown in any case, as we think it has been shown in this case, that the jury received testimony other than from the witness stand, our only course is to reverse the case.
The motion for rehearing is granted and the judgment reversed and remanded for another trial.
Reversed and remanded.