Lankster v. State

• Decision Date: 20 November 1901
• Citation: 65 S.W. 373
• Parties: LANKSTER v. STATE.
• Court: Texas Court of Criminal Appeals

65 S.W. 373

LANKSTER v. STATE.

Court of Criminal Appeals of Texas.

November 20, 1901.

Appeal from district court, Anderson county; John Y. Gooch, Judge.

W. H. Lankster was convicted of murder in the second degree, and he appeals. Reversed.

Moore & Newman, Wm. Watson, C. M. Kay, A. G. Greenwood, and Adams & Adams, for appellant. Robt. A. John, Asst. Atty. Gen, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at seven years' confinement in the penitentiary; hence this appeal.

This is the third appeal from a conviction of murder in the second degree, but, in the view we take of it, the case will again have to be reversed. We find no error in the action of the court overruling the motion for continuance, nor in the charge of the court. However, we would suggest that on a future trial it might be well to give a general charge on the subject of manslaughter. It appears from the bill of exceptions that after the jury had retired and had agreed on the verdict of guilty against defendant, before they had decided on the punishment to be assessed, one of the jurors mentioned the fact in the presence of the jury that appellant had been tried twice before, and the first jury gave him 25 years and the second 15 years in the penitentiary. Another juror disputed the number of years in the last verdict, stating it was only 10 which the jury gave. It further appears that other jurors stated the jury had nothing to do with prior convictions, and the foreman of the jury also stated this, which was assented to by all the jury, and the matter was not further mentioned. It is further made to appear by the affidavit of one juror that what was said did not in any wise influence him in arriving at his verdict, and it is agreed that all the other jurors would make the same statement. The question thus presents itself: Was this such misconduct on the part of the jury as to require a reversal of this case? We are aware there are some cases wherein we have stated that the mere allusion to the failure of defendant to testify is not a ground for reversal. But in those cases it will be found that state's counsel was provoked in what he stated by remarks of defendant's counsel. Campbell v. State, 35 Tex. Cr. R. 161, 32 S. W. 774; Brantley v. State (Tex. Cr. App.) 59 S. W. 893. In Morrison's Case, 39 Tex. Cr. R. 519, 47 S. W. 369, which has been referred to, we do not understand that any question as to the misconduct of the jury was before the court. The case was reversed on other grounds, and it was held in that case that the affidavit seeking to impeach the verdict of the jury for misconduct was too general. Here the bill shows with certainty that while the jurors had agreed appellant was guilty (doubtless of murder in the second degree, though this is not stated), they had not, at the time, agreed on the term of punishment which they would assess against appellant. Evidently, this agreement as to time was reached subsequent to the discussion of the two former verdicts in the jury room. If the verdict had been for five years,—the lowest term of punishment,—we might be able to say that no prejudice had resulted to defendant. But here the verdict is seven years. However, the jury say that this discussion in no wise influenced them in arriving at their verdict. The affidavits of jurors who are guilty of misconduct to the effect that they were not prejudiced by what they did is of...