Cotton v. State

• Decision Date: 09 March 1921
• Docket Number: (No. 5948.)
• Citation: 228 S.W. 943
• Parties: COTTON v. STATE.
• Court: Texas Court of Criminal Appeals

228 S.W. 943

COTTON v. STATE.

(No. 5948.)

Court of Criminal Appeals of Texas.

March 9, 1921.

Appeal from District Court, Hunt County; R. L. Porter, Special Judge.

Hubert Cotton was convicted of manslaughter, and he appeals. Judgment reversed, and cause remanded for new trial.

Neyland & Neyland and Crosby & Harrell, all of Greenville, and B. B. Sturgeon, of Paris, for appellant.

Clark & Sweeton, of Greenville, and Alvin M. Owsley, Asst. Atty. Gen., for the State.

HAWKINS, J.

The appellant was convicted of manslaughter, and his punishment assessed at 3 years' confinement in the penitentiary. This is the second appeal. The result of the first one will be found reported in 217 S. W. 158.

The appellant presents many questions to this court for review with reference to the charge of the court, and exceptions thereto, and the failure of the court to give many special charges requested. Upon an examination of the entire record we believe the charge of the court was a fair and comprehensive charge, guarding the rights of appellant at all points and upon all issues, and that there is no error shown by the record with reference to these matters complained of.

There is, however, one serious question presented by the record, and that is as to the alleged misconduct of the jury. It is claimed that after the jury retired to consider of their verdict they received other testimony injurious to appellant, in violation of article 837, C. C. P., subdivision 7, providing that a new trial should be granted where the jury, after having retired to deliberate upon the case, have received other testimony. It is disclosed from the record that during the trial of this case many witnesses were asked if they had not, upon the former trial of the case, testified to certain matters. Therefore there was legitimately before the jury evidence that there had been another trial of this case, but this is as far as the record goes. It now appears that there had in fact been two trials of this defendant, in one of which there was a hung jury and in the other he was convicted and given a term of 12 years. It also appears that appellant's brother had been tried and given a term of 5 years in the penitentiary. This information in some way reached the jury, and it was talked about and discussed by them in a manner which will be hereinafter shown.

When the jury retired, upon the first ballot they stood nine for conviction and three for acquittal, those for conviction being divided in their opinion as to the number of years appellant ought to be given, but ranging from 2 to 10 years, with one man perhaps being a little higher than that; but three of the jurors were holding out for acquittal. After the verdict was reached affidavits were made by some of the jurors, which affidavits were attached to the motion for new trial, but in the hearing of this motion all of the jurors were brought into court, and testified upon the issue of the misconduct of the jury, except one who was temporarily out of the county.

To embrace in this opinion the complete testimony of the jurors with reference to this matter would extend it beyond all reasonable bounds, because the testimony covered many pages in the bill of exceptions to the action of the court in overruling the motion for a new trial.

Only two of the jurors, M. C. McWhirter and J. J. Pace, denied having heard any discussion in the jury room with reference to the former conviction of appellant, or that one of his trials resulted in a hung jury, they claiming that after the jury was discharged they heard some mention of it, but the statement of the juror Pace in this respect is sharply challenged by the statement of the juror D. W. Clayton. Clayton, in substance, testified that he was for acquittal, and held out for acquittal until a short time before the jury came together upon the 3-year verdict. He claims he was discussing the matter with Pace and trying to get Pace to come over with him and the others and agree to an acquittal, and that Pace told him in that connection that this case had been tried twice before, and that one trial was a hung jury, and the next trial defendant got 12 years in the penitentiary, and that he (Pace) could not agree to an acquittal by reason of that fact. Clayton claims that he had been for acquittal up to the time this argument was used by the juror Pace, and that then he and the two other jurors, who had been holding out for acquittal, concluded it would be better to come to the 3-year proposition as some other jury might give him a higher penalty. All of the jurors who testified agreed that at some time during the deliberations the fact of the defendant's previous conviction with a 12-year sentence was discussed, some claiming that they heard nothing about one former trial resulting in a hung jury; some testifying that the matter of his brother having been convicted and given 5 years was mentioned, and some claiming that they did not hear this. The first mention of the result of the former trials in the case, either of appellant or his brother, seems to have been before the case went to the jury, one juror testifying that after they had gone to their room and retired for the night some juror remarked that, "From the questions that are being asked it appears this case has been tried before;" that one of the other jurors spoke up and said, "Yes, this case has been tried twice before, one time resulting in a hung jury and the other time a conviction with 12 years in the penitentiary," and that his brother Ira Cotton had also been tried and given 5 years. It seems that this conversation was not heard by all the jurors, as they occupied...