Chappell v. State , 121 Tex. Crim. 293 ( 1932 )

In its motion for rehearing, the state complains of one statement in our original opinion which is claimed to be inaccurate. The statement criticized has been eliminated from the opinion.

The state recognized that, when a situation is permitted to occur such as is shown by the present record, the presumption of injury arises, but takes the position that the state discharged the burden of overcoming such presumption through the testimony alone of the deputy sheriff in charge of the jury. We acquit the officer of any wrong. He was doing to the best of his ability what the court had authorized him to do. It was humanly impossible for one man to know what was said by all the parties under the circumstances shown in the present case. Such questions can be kept out of a case much easier than they can be eliminated when once in. It is regrettable when such situations arise. It is not necessary to again refer to authorities. Many will be found collated in the excerpt from the opinion in Toussaint v. State, 92 Tex.Crim. Rep.,244 S.W. 514, quoted in our original opinion.

Believing the conclusion heretofore announced to be correct, the motion for rehearing is overruled.

Overruled.