Kelly v. State

• Decision Date: 23 October 1889
• Citation: 12 S.W. 505
• Parties: KELLY <I>v.</I> STATE.
• Court: Texas Court of Appeals

Page 505

12 S.W. 505

KELLYv.

STATE.

Court of Appeals of Texas.

October 23, 1889.

Appeal from district court, Tarrant county; R. J. BOYKIN, Special Judge.

Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

This appeal is from a judgment of conviction for theft of property over the value of $20, with punishment assessed at seven years in the penitentiary. There is no statement of facts in the record, and but one question is presented for decision, and that is as to the separation of one of the jurors from his fellows; which question is made fully to appear by appellant's motion for new trial, with accompanying affidavits in relation thereto.

One of the statutory grounds for new trial is "when, from misconduct of the jury, the court is of opinion that defendant has not received a fair and impartial trial; and it shall be competent to prove such misconduct by the voluntary affidavits of a juror; and a verdict may, in like manner, be sustained by such affidavit." Code Crim. Proc. art. 777, subd. 8. Separation of a jury has generally been considered a species of "misconduct" coming within the operation of this rule. Early v. State, 1 Tex. App. 248. It is expressly provided by our Code that after the jury has been impaneled to try any case of felony they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the consent of the attorney representing the state and the defendant, and in charge of an officer. Code Crim. Proc. art. 687

The affidavit of Bays, the juror whose separation from the rest of his fellows is the matter complained of, states that after the jury had been impaneled and sworn, the indictment read, the defendant had pleaded not guilty, and one of the state's witnesses had been examined, the court adjourned until 9 o'clock A. M., the next morning. It seems that he understood the court to, excuse the jury until that time; and he immediately separated from his fellows, and was gone from that time, — that is, from 5 o'clock P. M. on April 1, until 9 o'clock A. M., April 2, — some 15 or 16 hours, a whole night having intervened. In an affidavit made by the officer having charge of the jury, the officer says that the juror Bays "did make his escape, and leave the rest of the jury, and remain separate and away from [his] care and keeping, and from the balance of the jury; and that he does not know where the said Bays was, or with whom he associated during that time." Bays does not say in his affidavit where he was, or with whom he associated. He states, however, that "no one said anything to him about the...