Means v. State

• Decision Date: 15 April 1925
• Docket Number: (No. 8851.)
• Citation: 271 S.W. 613
• Parties: MEANS v. STATE.
• Court: Texas Court of Criminal Appeals

271 S.W. 613

MEANS v. STATE.

(No. 8851.)

Court of Criminal Appeals of Texas.

April 15, 1925.

Commissioners' Decision.

Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.

Henry Means was convicted of murder, and he appeals. Reversed and remanded for new trial.

Adams & Moore, of Nacogdoches, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

BAKER, J.

The appellant, Henry Means and Rho Means were charged jointly by indictment in the district court of Nacogdoches county with murdering Calvin Kinney by shooting him with a pistol, and appellant was convicted of murder on the 29th day of March, 1924, and his punishment assessed at 10 years' confinement in the penitentiary, from which conviction the defendant filed his motion for new trial, and brings this case before this court for review upon several alleged errors committed by the trial court.

From a careful inspection of the record in this case, it occurs to us that there is only one question presented which demands our attention, and that is the eighth assignment of error set out in defendant's amended motion for new trial, wherein it is contended and alleged that the jury, after they had been charged by the court and retired to consider of their verdict, in effect, received testimony out of the record and considered same, which is alleged as misconduct of the jury in said motion.

The record discloses by appellant's bill of exception No. N that the appellant was a negro, and charged with murdering a white man, and, while the jury was out considering their verdict and before a verdict was reached, and while the jury was divided, and while the sheriff and his deputy were attempting the arrest of a negro bootlegger, the negro killed the deputy and wounded the sheriff and in the fight the negro was killed. The dead bodies of the deputy sheriff and the negro were brought and placed in the courthouse yard within about 35 feet of the jury room, within view and hearing of the jury, and that a large and boisterous crowd assembled around said bodies, and the crowd was condemning negroes killing white men and became so boisterous the deputy sheriff had to quiet them, and the jurors had their heads out the window of the jury room witnessing and hearing the crowd, and afterwards returned a verdict of guilty into court. The appellant summoned the jury, and in support of his motion for new trial proposed to prove that such conduct influenced the jury in rendering a verdict of guilty against him.

It will be observed from said bill that appellant made his affidavit to said motion for new trial to that portion of same complaining of the action of the jury, and in part stated:

"That the matters, as set forth in said assignment, were not cognizant to the defendant and are newly discovered evidence, discovered since the trial and conviction, and that said assignment is true and correct to the best of my knowledge and belief."

The state demurred to said motion, attacking the sufficiency thereof, and especially the affidavit of the appellant above mentioned, which demurrer, among other things, was "because the said assignment is without merit, since it nowhere refers to or makes the affidavit of any person who was in position to know any misconduct of the jury, nor is there attached the affidavit of any person who was in position to know that there was any misconduct upon the part of the jury," and because said assignment was a direct attempt on the part of defendant to impeach the verdict of the jury and to go into the sanctity of the jury room and into the deliberations of the jury, without such predicates as the law requires in such matters, etc., and, further, because there is no affidavit which sets out any newly discovered evidence made by any witness who will testify to any newly discovered evidence. The court sustained the demurrer of the state, as shown by said bill of exception, and it is to be inferred from the record as presented that it was upon the ground that the affidavit of the defendant was insufficient, or that there was no affidavit of any juror attached to the motion, and that the law did not permit an inquiry of the kind orally, but limited such inquiry to affidavits. It will be observed from said bill of exception that it is stated therein that the jury was undecided on a verdict at the time when the bodies of the deceased persons were placed within about 35 feet of the jury room and in view of the jury, and that the jury could hear the demonstrations of the people assembled around the deceased persons and were viewing from the jury room the acts and conduct of the crowd there assembled, and that they thereafter returned into court a verdict of guilty, as above stated. The bill also discloses that the appellant had the jury there ready to offer them as witnesses on the issue presented in his motion for new trial, and said bill shows:

"And the defendant was ready and had present the jury that tried the defendant and would have introduced testimony for the court to have heard and considered the assignment of error as to whether or not there was any misconduct of the jury as alleged under said assignment, but the court, as is shown above, sustained the state's demurrer to said assignment of error No. 8 and refused to allow the defendant to put on and carry into this record evidence sustaining said assignment, in that the court was of the opinion that it was newly discovered and...