Moore v. State

275 S.W.2d 673, 160 Tex. Crim. 642, 1955 Tex. Crim. App. LEXIS 1134

• Court: Court of Criminal Appeals of Texas
• Decided: January 26, 1955
• Docket: 27297
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is the sale of whisky in a dry area; the punishment, six months in jail and a fine of $750.00.

The sole question for review is alleged jury misconduct in that it received new and additional evidence during its deliberations.

The state challenges the sufficiency of the motion for new trial. The motion first recites the jury misconduct which is hereinafter set forth; it then recites, “That the aforesaid information came to the defendant’s attorney from conversations with two of said jurors, to-wit, E. J. Birdwell and T. M. Carrell.” The motion is sworn to by the appellant, and attached thereto is a separate affidavit of appellant’s attorney, who was named in the motion as having learned of the misconduct.

The latest expression of this court on this question is found in Prince v. State, 158 Texas Cr. Rep. 320, 254 S.W. 2d 1006, wherein we said:

“The policy of the law is to discourage ‘fishing expeditions’ in an effort to impeach a jury verdict. If jury misconduct has occurred, then the appellant is entitled to a hearing, but only where he has learned of such misconduct before the hearing is had. Where the misconduct was of such a nature that it would be known only by members of the jury, then an affidavit of a juror is proper. But this is not the exclusive method. Where the appellant is unable to secure such an affidavit, it is incumbent upon him to show this, and why, and, further, to show reasonable grounds for believing that such misconduct actually occurred. For illustration, this might be done by an affidavit of some person, reciting that a member of the jury had told them of misconduct, followed by affidavit of appellant or in his behalf to the effect that, though requested to do so, such juror had refused to make an affidavit thereto. This also might be done by any other method that would put the trial court on notice that misconduct had occurred. This is not done by a motion which tells the trial court, T think misconduct has occurred and, though unable to verify it, I want to examine the jury to determine whether or not such did occur.’ ”

While the motion before us here does not comply fully with the illustration heretofore set forth, in that the motion does not recite that the attorney requested the juror to make an affidavit and that the juror refused, we have concluded that it comes within the purview of the sentence which follows.

We hold the motion to be sufficient.

From the statement of facts on motion for new trial it appears that while the jury was deliberating a statement was made by one of their number that he knew the appellant and that he had been bootlegging for a number of years. At another juncture during their deliberations the statement was made that the appellant had killed a Negro and had gone to the penitentiary for it. Juror Birdwell testified that before such statements were made he had voted for a fine of $500 and no jail sentence and that thereafter he voted for the verdict which was rendered.

The state called some of the jurors who testified that they did not hear these statements made but they did not testify that no such statement had been made.

In Jordan v. State, 158 Texas Cr. Rep. 543, 258 S.W. 2d 85, we reversed a conviction for the unlawful sale of whisky where one of the jurors told his fellows during their deliberation that he had personally on a prior occasion bought whisky from the appellant. Pafford v. State, 138 Texas Cr. Rep. 299, 135 S.W. 2d 990, is cited with approval" in the Jordan case.

The statements of the jurors constituted new and harmful evidence in violation of the appellant’s constitutional rights to be confronted by the witnesses against him.

The judgment is reversed and the cause remanded.