Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 448
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448 SMITH V. THE STATE. [Term of
Opinion of the Court.
as to determine this doubtful question for themselves by a personal
view. The defendant consented to this, which his counsel
might have done, whether he thought it a proper proceed.
ing, as part of this trial or not, so as to show that lie was not
afraid of any mode of trial, and because an objection might betray
to the jury a want of confidence in their judgment and
skill in ascertaining the fact for themselves, whether or not the
ears of the sow had been re-marked, by the appearance then
exhibited on a close personal inspection and view of them.
The court permitted this view to be taken, or inspection to
be made, whatever the proceeding may be properly called.
HIow they performed this office, what fact they discovered,
what conclusion they arrived at, and how far the personal
knowledge of the fact in issue then acquired, if any, influenced
their verdict, are not written in the record, and must necessarily
be something wholly unknown in the trial of this case, both in
the court below and in this court, as the sow was not brought
into court, nor sent up here with the transcript of the record.
If, by this means, they or either of them did obtain a personal
knowledge of a material fact in the cause before finding
their verdict, and it was considered by them in finding their
verdict, then they have acted upon a fact known to themselves,
not developed publicly on the trial, as to how they understood
it, concerning which defendant has had no opportunity to crossexamine.
them as witnesses, and upon which, being unknown,
the defendant or his counsel have not been heard, and of which
the judge trying the case had no information, either on the
trial in giving his charge, or on the motion for a new trial.
Our Code provides that " if any juror has knowledge of a
"fact connected with the cause on trial, it is his duty to make
"it known before the cause is finally submitted. Should he
"fail to do tllis, he may come into court with the other jurors,
"after their retirement, and shall be sworn as a witness, and
"give his testimony." (Paschal's Digest, Article 3081.)
Sir William Blackstone states the rule as then and ever
since in practice, "c that if a juror knows anything, he may be
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/456/: accessed December 14, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .