Speegle v. State , 102 Tex. Crim. 498 ( 1925 )

Appellant insists upon a reconsideration of the only question raised upon the original hearing, which is presented in his Bill of Exceptions No. 1, and treated in the original opinion. According to the explanation made by the trial judge to the bill of exceptions, in the charge instructing the jury on the subject of a suspended sentence, there were certain blanks left in the form of the verdict prepared by the court. The jury indicating that they were ready to report, the court requested the sheriff to call the defendant, who was at liberty on bond. From the court's qualification the following is taken:

"When this was done, I had the foreman hand me the verdict, which I had previously submitted to the jury. When I examined the verdict, I found that the blanks had not been filled and that the verdict was not complete. I then realized that it would be necessary for the jury to retire to complete their verdict. I assume that the defendant was present at this time, though I am not positive.

"I returned the verdict to the foreman and requested that the jury retire and consider further of their verdict. Within a short time after they had retired for the second time, they returned and I again requested that the defendant be called, and saw to it that he was in court.

"The verdict was handed me with the blanks all filled. Ascertaining that the defendant was present, the verdict was read, which was approved as read by the jury."

The court heard the testimony which is embraced in the bill, which leaves it far from clear that the appellant was absent when the jury first returned. See O'Toole v. State, 40 Tex. Crim. 578. Upon the hearing, appellant said that he was not in the court room when the jury first came in, but was on the lawn where he had voluntarily gone, and that when he was called, he came into the court room just as the jurors were rising from their seats to return to the jury room. He remained in the court room until the verdict upon which the judgment was rendered was returned and received by the court.

The appellant, on a plea of guilty, received the lowest penalty. The action of the court might well be sustained under the record upon the theory that the appellant was not absent at the time that the jury first came in. O'Toole v. State, supra. Moreover, the record fails to show that the court had any communication with the jury other than upon examining the paper which they handed to him, he told them to return and further consider their verdict. The cases to which the appellant refers, notably Hart v. State, 255 S.W. Rep. 414, are not deemed in point. In Hart's case, and those to which it refers, there were communications between the court and the jury in the absence of the accused, the nature of which were such as might have been hurtful. The present transaction is deemed analogous to that in O'Toole v. State, supra, also Cartwright v. State, 97 Tex.Crim. Rep..

The motion for rehearing is overruled.

Overruled.