May v. State, 24017.

• Decision Date: 24 March 1948
• Docket Number: No. 24017.,24017.
• Citation: 209 S.W.2d 606
• Parties: MAY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 606

209 S.W.2d 606

MAY v. STATE.

No. 24017.

Court of Criminal Appeals of Texas.

March 24, 1948.

Appeal from District Court, Hale County; C. D. Russell, Judge.

Grisham May was convicted of robbery, and he appeals.

Reversed and remanded.

Victor H. Lindsey and E. A. Blair, both of Lubbock, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for robbery, punishment assessed at twenty years in the penitentiary.

Appellant entered a plea of guilty to robbing the Hale Center First National Bank of something over $2,000.

It is not necessary to set out the facts.

In bills of exception Nos. 1, 2, 4, 5 and 6 appellant complains of misconduct of the jury in receiving evidence after their retirement which was not produced before them from the witness stand, and in considering such evidence in assessing appellant's punishment. The qualification of the trial court upon the various bills, and his findings of fact upon the hearing of the motion for new trial render the complaints without merit save as to that brought forward in bill No. 1. It is certified in said bill that the jury: "* * * did mention that there had been numerous other crimes committed in Plainview, Hale County, Texas recently and that the parties committing those crimes would be watching the verdict in this case and would govern their actions in accordance with the verdict in this case. It was also introduced in evidence on the motion that the jury discussed that their verdict would be rendered for Hale County's protection, and that the discussion by the jury was along the line to deter others from committing like offenses. The court in his order overruling defendant's motion for a new trial, also found that the jury did mention the effect of their verdict in this case upon other crimes which might be committed in the future. There was no evidence introduced in this case as to other crimes having been or about to be committed in Plainview, Hale County, Texas. * * *" It is further certified in the court's qualification to said bill that the district attorney in his closing argument discussed the purpose of punishment and asked the jury to render a verdict that might deter others from committing like offenses. There being no evidence before the jury of any other offenses having been committed in Plainview, that fact, if it was a fact, came to the jury's attention after they retired to consider their verdict. Same was improperly before them. Under Art. 753, C.C.P., subdiv. 7, it is made a ground for new trial "Where the jury, after having retired to deliberate upon a case, have received other testimony; * * *." See Brown v. State, 134 Tex. Cr.R. 275, 115 S.W.2d 646; Derrick v. State, 80 Tex.Cr.R. 10, 187 S.W. 759; Howell v. State, 94 Tex.Cr.R. 563, 252 S. W. 539; Johnson v. State, 114 Tex.Cr.R. 619, 26 S.W.2d 262; Stallworth v. State, 148 Tex.Cr.R. 255, 186 S.W.2d 252; Weaver v. State, 85 Tex.Cr.R. 111, 210 S.W. 698; Vernon's Texas C.C.P., Vol. 3, Art. 753, subdiv. 7, and cases cited in Note 39 thereunder. To what extent, if any, the fact that crimes committed by other parties affected the jury in the amount of punishment assessed against appellant is of course speculative, but under the law a reversal is demanded where evidence comes before the jury as here shown, and in the absence of a showing that no injury to appellant resulted.

The district attorney was well within his rights in arguing to the jury that punishment should be such as to deter others from committing similar offenses. Art. 2, P.C.; Greenwood v. State, 132 Tex. Cr.R. 505, 105 S.W.2d 888; Canedo v. State, 134 Tex.Cr.R. 80, 113 S.W.2d 902; King v. State, 141 Tex.Cr.R. 257, 148 S.W. 2d 199; Williams v. State, 145 Tex.Cr.R. 634, 170 S.W.2d 735; Sandoval et al. v. State, Tex.Cr., 209 S.W.2d 188, not yet reported [in State reports]. In this connection we call attention to the cautionary suggestion in King v. State, supra, [141 Tex.Cr.R. 257, 148 S.W.2d 200] that calling the jury's attention to the purpose of punishment should not be "* * * done in such a way as to bring matter outside the record specifically before the jury and so applied to the case before them as to constitute new evidence or to so inflame the minds of the jury as to affect their consideration of the evidence before them. * * *" The punishment sought in the case then before the jury must be based upon the legal evidence in the trial. Illegal evidence got before the jury after their retirement as to numerous crimes having been committed in Hale County, and a discussion by the jury as to what should be done in the present case in view of such facts. The consideration of numerous...