Davis v. State
| Decision Date | 17 May 1933 |
| Docket Number | No. 16022.,16022. |
| Citation | 60 S.W.2d 783 |
| Parties | DAVIS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Nueces County; Geo. C. Westervelt, Judge.
Isaac Davis was convicted of murder, and he appeals.
Reversed and remanded.
Woodard & Edgar, of Corpus Christi, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is murder; the punishment, death.
It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Arthur Dowd by shooting him with a gun.
Appellant's wife had been employed in the hotel operated by deceased. For some reason she had been discharged. Accompanied by his wife, appellant went to the hotel and asked deceased about discharging his wife. According to the version of the state, when deceased told appellant to see the housekeeper about the matter, appellant said: "You haven't heard the end of this yet." Deceased got up and started to walk around his desk. As he did this he said: "What do you mean by that?" Appellant drew a pistol from his pocket and fired several shots. Deceased fell, mortally wounded. There was testimony on the part of the state that prior to going to the hotel appellant had threatened to kill deceased.
Appellant testified that deceased opened his desk drawer and was drawing a pistol on him; and that believing his life was in danger, he fired the fatal shots. He offered proof to the effect that deceased was high tempered and overbearing.
While there was no exception to the charge of the court for submitting an instruction covering the law of provoking the difficulty, in view of another trial, it is suggested that such instruction be eliminated. We fail to find any testimony in the record which, in our opinion, raises the issue.
The judgment must be reversed because of misconduct of the jury. From the testimony heard on the motion for a new trial, the following, in substance, is shown: After the impanelment of the jury, and before the rendition of a verdict, various members of the jury were permitted by the officers in charge to carry on telephone conversations. These conversations were had out of the presence and hearing of the court. The officers said that the conversations were had with the wives of the jurors. They were unable to hear all that was said by the jurors, and, of course, heard none of the conversation from the other end of the line. One of the officers said he did not know how many jurors talked over the telephone. He said that they talked from the courthouse and from the restaurant where they were taken for their meals. He testified that the court told him to let the jurors talk over the telephone concerning their private matters.
Only the officers in charge testified touching the misconduct of the jury. The wives of the jurors were not called, nor did any of the...
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