Smith v. State

333 S.W.2d 385, 169 Tex. Crim. 315, 1960 Tex. Crim. App. LEXIS 2928

Opinions

MORRISON, Presiding Judge.

The offense is murder without malice; the punishment, five years.

We are met at the outset with a serious question of jury misconduct. Appellant introduced at the hearing on the motion the affidavits of three of the jurors, and the state introduced affidavits from four of the remainder. Juror Baker swore that during their deliberations, and before arriving at a verdict, several jurors stated that appellant “would only have to serve 18 months if given a five-year sentence.” Juror King swore that he heard during their deliberations, and before arriving at a verdict, that appellant “would only have to serve 18 months of a five-year sentence.” And juror Printis swore that some of the jurors stated during their deliberations, and before the five years was agreed upon, “that if he (appellant) were assessed five years he would serve it in eighteen months.”

We think it is significant to point out at this juncture that none of the above affidavits mentions parole or eligibility for parole but make the blanket assertion that the sentence would be served in 18 months.

The state introduced the following affidavits. Juror Gam-brell swore as follows “I don’t recall anyone saything (sic) that a prisoner could serve a five-year term in eighteen months.” Juror Hoyer swore as follows, “I do not recall anyone saying the defendant would have to serve * * * eighteen months on a five-year period * * * Judge Bagby swore, “I did not hear anyone say that a prisoner would serve * * * eighteen months on a five-year term * * * Juror Gorski swore, “ * * nor did I hear anyone else make any representation * * * as to the time he would have to serve * * *

Under the holdings of this court in Gibbs v. State, 163 Tex. Cr. Rep. 370, 291 S. W. 2d 320, the affidavits of the jurors that they did not hear statements made is not sufficient to raise an issue of fact for the trial court’s determination.

The facts before us here are far stronger than in Mays v. State, 166 Tex. Cr. Rep. 339, 320 S.W. 2d 13, because there the discussion was concerning accused’s eligibility for parole, not that he would serve the sentence.

Upon another trial, the question of newly discovered evidence will not be presented, and therefore need not be discussed.

Because the jury during its deliberations received new and incorrect information concerning the punishment, the judgment is reversed and the cause is remanded.