Ross v. State

• Decision Date: 29 April 1925
• Docket Number: (No. 8624.)
• Citation: 273 S.W. 582
• Parties: ROSS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 582

273 S.W. 582

ROSS v. STATE.

(No. 8624.)

Court of Criminal Appeals of Texas.

April 29, 1925.

Rehearing Denied June 10, 1925.

Commissioners' Decision.

Appeal from District Court, Grayson County; F. E. Wilcox, Judge.

Hicks Ross was convicted of unlawful possession of intoxicating liquor for sale, and he appeals. Affirmed.

B. F. Gafford, of Sherman, for appellant.

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

BAKER, J.

Appellant was charged by indictment with the unlawful possession of intoxicating liquors for the purpose of sale in one count, and in another count with unlawful possession of equipment, still, mash, and material for manufacturing spirituous liquors, on or about the 21st day of September, 1923, and was convicted in the district court of Grayson county upon the first count in the indictment on January 1, 1924, and his punishment assessed at confinement in the penitentiary for one year, the court having withdrawn from the consideration of the jury the second count in the indictment, from which conviction the appellant has appealed to this court for a reversal of this case.

Appellant complains in his bill of exception No. 1 of the following portion of the court's charge:

"It is provided by a recent act of our Legislature that the possession of more than one quart of intoxicating liquor shall be prima facie evidence that such possession was for the purpose of sale; but the defendant shall have the right to introduce evidence showing the legality of such possession and in this connection you are instructed that the possession of intoxicating liquor for medicinal purposes is legal,"

— because such charge was prejudicial to the rights of the appellant upon the weight of the evidence, and the act of the Legislature relative thereto (Acts 2d called Sess. 38th Leg. [1923] c. 22, § 2e) was in violation of section 10, article 1, of our Constitution.

The court followed up that portion of the charge complained of and charged the jury as follows:

"If you believe from the evidence that defendant was in possession of spirituous liquor as charged in the indictment, but you believe that he had the same for medicinal purposes, then you should acquit the defendant, or if you have a reasonable doubt as to whether he did or not you will acquit him,"

— and, in addition thereto, gave the usual charge on the presumption of innocence and on reasonable doubt.

We are unable to agree with the contentions of the appellant as to the unconstitutionality of said statute, and as to the charge being upon the weight of the evidence, and deem it unnecessary to go into a lengthy discussion of the same, in view of the former decisions of this court construing the same act of the Legislature against the contention of the appellant. Stoneham v. State (Tex. Cr. App.) 268 S. W. 156; Newton v. State (Tex. Cr. App.) 267 S. W. 272; Herrin v. State (Tex. Cr. App.) 271 S. W. 928, decided April 1, 1925, not yet [officially] published.

There are several other objections urged to the court's charge in appellant's brief, among which is complaint made because the court failed to define the term "prima facie"; but, as there were no objections or exceptions urged to said charge in this respect, as required by the statutes, and no special charges submitted, we are unauthorized to consider same.

There is also complaint in this case of the misconduct of the jury, to the effect that after they went out to consider their verdict, and stood 8 to 4 for conviction, they discussed and considered the second count of the indictment, which charged appellant with having equipment, still, mash, and material for manufacturing spirituous liquors, which count had been withdrawn from their consideration by the court. There was evidence offered by the appellant in support of this contention through the jurors, to the effect that they considered same in reaching their verdict in this case. This court has held that it is not permissible to permit the jurors, either by affidavit or oral testimony, to show that they misunderstood, misread, or misconstrued the charge of the court. Branch's Annotated Penal Code, p. 297, § 575, and authorities there cited. The statutes authorize the jury to have all original papers during their deliberation and consideration of the verdict. This includes the indictment in the case. Vernon's Code of Criminal Procedure, art. 751. In Underhill's Criminal Evidence, § 362, it is stated:

"The jurors may, when out of court, consult memoranda or notes of the judge's charge, and all papers which are in evidence, including the indictment," — citing Stout v. State, 90 Ind. 1.

From the authorities above quoted and cited, we are of the opinion that the court was not in error in overruling the motion for new trial in this particular.

After a careful examination of the entire record, we fail to find any error committed upon the trial in the lower court, and this case is accordingly affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

It is a general principle of law that the verdict of a jury may not be impeached by the affidavit or sworn statement of a juror. Weatherford v. State. 31 Tex. Cr. R. 530, 21 S. W. 251, 37 Am. St. Rep. 828; Ulmer v. State, 71 Tex. Cr. R. 579, 160 S. W. 1188; Pilot v. State, 38 Tex. Cr. R. 515, 43 S. W. 112, 1024; Henry v. State (Tex. Cr. App.) 43 S. W. 340; Montgomery v. State, 13 Tex. App. 74; McCane v. State, 33 Tex. Cr. R. 476, 26 S. W. 1087; Johnson v. State, 27 Tex. 758. In article 837, C. C. P., it is said:

"New trials, in cases of felony, shall be granted for the following causes, and for no other."

In other parts of the statute various matters are enumerated. The interpretation of these provisions of the statute, so far as the writer is informed, has been that, when the averment is that a specific act prohibited by statute has taken place, such as the decision by lot, the receiving of other testimony, the drunkenness of a juror, or conversation with outsiders is the inquiry, the jurors in many cases are the only persons available from whom this information may be obtained, and subdivision 8 of article 837, expressly authorizes the receipt of the affidavit of the juror in proof of such matters. These are made imperative reasons for a new trial, unless the absence of injury be shown. See McDougal v. State, 84 Tex. Cr. R. 424, 208 S. W. 173. In the eighth subdivision of the statute, however, which refers to the misconduct of the jury, the inquiry relates to some undefined misconduct which is recognized as sufficient to vitiate the verdict. To determine whether it is of such character, the discretion rests generally with the trial court. In addition to the authorities above cited are Patterson v. State, 63 Tex. Cr. R. 297, 140 S. W. 1128; McCulloch v. State, 35 Tex. Cr. R. 268, 33 S. W. 230; Hamilton v. State, 64 Tex. Cr. R. 175, 141 S. W. 966.

In the present case, it is not any of the specific things mentioned in the statute as cause for new trial upon which reliance is had, but it is in substance the disobedience or disregard of that phase of the court's charge in which the jury was instructed to give consideration alone to the first count of the indictment. Preliminary to a discussion of the merits of this contention, it is well to bear in mind the fact that the indictment is a part of the...