Opinion
No. 25278.
April 25, 1951.
Appeal from the District Court, Garza County, Louis B. Reed, J.
N.C. Outlaw, Erwin G. Ernst, Post, for appellant.
George P. Blackburn, State's Atty., Austin, for the State.
The offense is murder; the punishment, five years in the penitentiary.
No contention is made that the evidence does not support the verdict.
On motion for new trial appellant established that the jury, in going from the courthouse to the cafe and returning therefrom, on two occasions rode in three separate automobiles, that these automobiles were parked at different places and that the jurors walked from such parking places unattended by an officer in a busy section of town, varying distances to the cafe, and returned therefrom to their cars without the supervision of an officer.
This having been shown, it became incumbent upon the State to show that such jurors did not mingle or converse with anyone not a member of the jury. This burden the State failed to discharge. The officer attending the jury was not called, and only four members of the jury testified on the hearing.
Without a complete showing of noninterference with the jury by anyone outside its number, we cannot say that a separation — as the same is denounced by statute — did not occur. See Arts. 623 and 668, C.C.P.
For the errors pointed out, the judgment of the trial court is reversed and the cause remanded.