Clements v. State

• Decision Date: 19 February 1913
• Parties: CLEMENTS v. STATE.
• Court: Texas Court of Criminal Appeals

153 S.W. 1137

CLEMENTS v. STATE.

Court of Criminal Appeals of Texas.

February 19, 1913.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

T. B. Clements was convicted of manslaughter and he appeals. Reversed and remanded.

J. W. Taylor and J. N. Gallagher, both of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of manslaughter, and prosecutes an appeal to this court.

It appears by the affidavit of the foreman of the jury that, while the jury was considering their verdict, the jury not only discussed the former conviction of defendant of this offense, but one of the jurymen even went so far as to inform the others as to the term of years assessed against the defendant; that up to this time a portion of the jury had been in favor of an acquittal, but after being informed as to the result of the former trials one who had been voting for acquittal stated that, if that was the result of the former trials, he would agree to a conviction if they would only assess his punishment at two years in the penitentiary. On the trial of the case it was in evidence that there had been former trials of this case, but the result of the former trials was not in evidence. Suppose on the trial the state had been permitted to prove that defendant on the former trials had been convicted, and had been given a number of years in the penitentiary, over the objection of defendant. Would this not have presented reversible error, and, if so, was the fact that it was not admitted in evidence on the trial, but the members of the jury informed of it after their retirement, and this argument used to get one to agree to a verdict, render it less hurtful? If such testimony was not admissible in evidence, the fact the jury was so informed, and discussed the matter after retirement, would necessarily do more harm to appellant than if admitted on the trial; for, if defendant knew that such evidence was before the jury, he might seek to have it eliminated by moving to strike it out, or asking the court to instruct the jury not to consider it. But in this character of case inadmissible evidence is used to secure a conviction, or at least one member of the jury to agree to a conviction, and this will necessarily result in its reversal.

In another bill it is claimed that the state asked certain questions to prejudice the jury against witnesses for defendant, the state's attorney knowing at the time that no grounds...