Stockwell v. State, 28905

• Decision Date: 10 April 1957
• Docket Number: No. 28905,28905
• Citation: 301 S.W.2d 669,164 Tex.Crim. 656
• Parties: John Hunter STOCKWELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 669

301 S.W.2d 669

164 Tex.Crim. 656

John Hunter STOCKWELL, Appellant, v. The STATE of Texas, Appellee.

No. 28905.

Court of Criminal Appeals of Texas.

April 10, 1957.

Richard C. Keene and James E. Barlow, San Antonio, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for robbery by assault, with three prior convictions of felonies less than capital alleged to enhance the punishment under Art. 63, V.A.P.C.; the punishment, life imprisonment.

In view of our disposition of the case a recitation of the facts is not deemed necessary, other than to state that the State's testimony shows that on or about the date alleged the injured party, M. E. Fred, who was manager of the Professional Pharmacy in the City of San Antonio, was assaulted and robbed of the sum of $100 in money and a quantity of narcotics. As a witness for the State, Fred identified the appellant as the man who assaulted and robbed him. Two other eitnesses called by the State, who were present in the pharmacy at the time of the robbery, testified that appellant looked like the man who committed the robbery but did not positively identify appellant as the man.

Proof was made by the State of the appellant's prior convictions as alleged in the indictment.

Bill of Exception No. 1 relates to the Court's action in overruling appellant's amended motion for new trial in which certain jury misconduct was alleged and in refusing to allow evidence to be offered thereon.

In the motion it was alleged as jury misconduct that certain jurors had read a newspaper article appearing in the San Antonio News on the evening of October 15, 1956, after they had been examined on voir dire examination, sent home for the evening by the Court and the Court announced that the peremptory challenges would be taken on the following morning.

The newspaper article was attached to the motion as Exhibit A, and made a part thereof, and related to the trial of appellant. Omitting certain portions thereof, the article read:

'Stockwell Jury Starts Forming.

'Stockwell's sister, Mrs. Jack Skelton of Dallas, wrote Gov. Allan Shivers demanding that her brother be given a lie detector test. She charged four tests he had been given at police headquarters here were made with a defective machine.

'Shivers declined the request but forwarded her letter to Asst. Dis. Atty. Anthony Nicholas who arranged another test in Austin. He said the results were unchanged.'

It was further alleged in the motion that after the jury had retired to deliberate upon the case on certain juror asked the entire jury if they had read the newspaper article and several jurors answered in the affirmative.

The motion was supported by affidavit of the juror Maupin in which, omitting the formal parts, he stated:

'That my name is M. H. Maupin, and I am a resident of Bexar County, Texas. That I was a juror in the case of the State of Texas v. John Hunter Stockwell, No. 55164, in the Criminal District Court No. 2, Bexar County, Texas. That the jury panel was questioned on the 15th day of October, A.D. 1956, and that Monday evening they were allowed to go home and were told by the Court to return on the morning of the 16th of October, A.D. 1956.

'I take the San Antonio News and that night (the 15th) I read an article in the News headlined 'Stockwell Jury Being Selected', or words to the same effect. After the testimony in the case was finished and the arguments had been heard and the jury retired to the jury room to deliberate, the foreman, Walter Schaeffer, a preacher from Leon Springs, Texas, asked the jury panel if they had read the article 'that was in last night's paper', referring to the article I had read, and several of them answered in the affirmative. I do not remember what else was said about the newspaper, but from what was said, I understood what they were talking about.'

The action of the Court in overruling the motion and refusing to allow evidence to be presented thereon constitutes reversible error.

One of the statutory grounds for a new trial in a felony case under Article 753, V.A.C.C.P., is 'where the jury, after having retired to deliberate upon a case, have received other testimony.'

In 31 Tex.Jur., Par. 48, page 241, it is stated:

'A new trial should be granted if, during their deliberations the jury had access to newspapers and considered an account therein of the case which was imperfect or incorrect, or an account which contained new evidence not introduced upon the trial.'

In the early case of Williams v. State, 33 Tex.Cr.R. 128, 25 S.W. 629, 630, 28 S.W. 958, in which jury misconduct was claimed because two of the jurors read newspaper accounts of the trial after they had retired to deliberate upon their verdict, it was said:

'While it is true that where a newspaper contains prejudicial reports of the trial, or comments on the case, or the persons or character of those connected therewith, (Walker's case [Walker v. State], 37 Tex. 380), or where it contains matter calculated to influence the verdict, (People v. Murray , 24 P. 666,) the verdict should be set aside, yet where there is nothing in the newspaper statement of the evidence calculated in any way to affect the rights of defendant, while it is not proper to admit it to the jury, still it should not vitiate the verdict.'

In Banner v. State, 154 Tex.Cr.R. 153, 225 S.W.2d 975, 976, in passing upon a claim of jury misconduct because the...