Myers v. State

• Decision Date: 27 March 1963
• Docket Number: No. 35442,35442
• Citation: 365 S.W.2d 932
• Parties: John Edwin MYERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 932

365 S.W.2d 932

John Edwin MYERS, Appellant, v. The STATE of Texas, Appellee.

No. 35442.

Court of Criminal Appeals of Texas.

March 27, 1963.

Orvan B. Jones, Richard L. Stone, Jacksonville, for appellant.

Guilford L. Jones, Big Spring, Hulon B. Brown, Jacksonville, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for murder; the punishment, death.

The trial was had in Cherokee County on a change of venue from Howard County.

The evidence introduced by the state reveals that the appellant is guilty of the planned, deliberate, and brutal murder of Arthur Lee Dekraai by shooting him with a pistol. Two written statements made and signed by the appellant were introduced in evidence by the state and they show a killing by him of the deceased without any justification; and said statements were sufficiently corroborated.

Appellant did not testify but called Ben England, a psychologist, and Dr. Charles W. Folsom, physician and surgeon engaged as a psychiatrist, and both were employed at the Rusk State Hospital. By their testimony he sought to support his plea of insanity at the time of the commission of the offense and also at the time of the trial.

In rebuttal on the issues of insanity, the state called Dr. James H. Kreimeyer, physician and surgeon, employed as a psychiatrist at the Rusk State Hospital.

Only three witnesses testified on the issues of insanity and they were: England and Folsom for the appellant, and Kreimeyer for the state.

Appellant contends that the trial court erred in refusing to grant his first amended motion for new trial based upon alleged jury misconduct. The specific complaints are that the statements of two jurors before the others in the jury room discredited the the testimony of appellant's witnesses England and Folsom, and that the statements of Westbrook, foreman of the jury, bolstered the testimony of the state's witness Dr. Kreimeyer.

In his motion appellant alleges that while the jury were considering the insanity issues, two jurors (Musick and Hudnall) stated that they knew and were well acquainted with the witness Ben England and they would give no credence to his testimony. In addition, one juror said Dr. Folsom was 'not so hot', and argued that if he was qualified and capable he would not be working for 'peanuts' at the Rusk State Hospital. At this point, Juror Richards asked if this also applied to Dr. Kreimeyer, the state's witness. Juror Westbrook, the foreman of the jury, replied that he knew Dr. Kreimeyer, that he was a good man and an excellent doctor who had left a good private practice because he was an arrested TB case.

In support of his motion the appellant attached the affidavits of Jurors Westbrook, Darnell, Rountree, and Homer Davis. These affidavits reveal:

Westbrook, the foreman of the jury, states that during the lengthy deliberations on the sanity issues, Juror Richards who was contending that the appellant was insane on both dates asked if the statements about England and Folsom applied to Dr. Kreimeyer. In reply Westbrook said that he knew Dr. Kreimeyer personally, that he was a good man and a good doctor and the only reason he was retired from private practice and working for a low salary was the fact that he was an arrested TB case.

Juror Darnell states that based on England and Folsom's testimony he had voted to find appellant insane on both dates until the Jury Foreman Westbrook told the jury he was personally acquainted with Dr. Kreimeyer, who had left a good private practice and was working for a low salary at Rusk State Hospital due to the fact that he was an arrested TB case, and that he was an excellent doctor and well qualified in his field.

Juror Homer Davis did not mention Dr. Kreimeyer in his affidavit.

Juror Rountree in his affidavit recites that the Foreman of the jury, Westbrook, stated that he was personally acquainted with Dr. Kreimeyer, that he was an excellent doctor and a good man who had left a good practice solely because he was an arrested TB case.

The state controverted the motion of appellant and attached thereto affidavits of the following jurors which in substance reveal:

Jurors Howard Davis and Johnson state that they had a full discussion on the sanity issues but they do not recall hearing any juror make any statement about the character or ability of England, Folsom or Kreimeyer.

Juror Hudnall states that he worked at the Rusk State Hospital and denied making or hearing any statement for or against the character or ability of any of the three witnesses.

Juror Darnell states that any reference by him in the affidavit he gave the appellant that the two jurors who worked at the State Hospital based their comments upon...