Vanduran v. State

• Decision Date: 28 November 1906
• Citation: 98 S.W. 247
• Parties: VANDURAN v. STATE.
• Court: Texas Court of Criminal Appeals

98 S.W. 247

VANDURAN v. STATE.

Court of Criminal Appeals of Texas.

November 28, 1906.

Appeal from District Court, Waller County; Wells Thompson, Judge.

Price Vanduran was convicted of manslaughter, and he appeals. Reversed and remanded.

A. G. Lipscomb and W. J. Poole, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Conviction was for manslaughter, punishment being assessed at three years' confinement in the penitentiary.

After the retirement of the jury, they reached a conclusion that appellant was guilty. They were divided on the punishment, ranging perhaps from six or seven years down to two. On motion for new trial, the misconduct of the jury is alleged, and it is shown by Jake Galewsky (one of the jurors) that during their deliberation the jury was discussing the bad character of the deceased, Johnnie James, in connection with the guilt or innocence of the defendant. One of the jurors, John Mills, remarked, in reply, that defendant, Price Vanduran, was a bad negro, and that he had been sent to the county farm, and that he had guarded appellant on the county farm. It is further shown, while the jury were in their retirement, that the court informed the jury that, if they did not reach a verdict before 5 o'clock, he would have to leave and be gone until Monday morning. After the jury had been out for several hours, Wright McDade, deputy sheriff in charge of the jury, informed them that the judge said it was only 30 minutes until train time, and if they did not get a verdict by that time, he was going to Houston, and from there to Dallas, and would not be back until Monday morning, and the jury would have to be kept together and locked up until Monday morning; that this juror was at first in favor of an acquittal, and if he could not get defendant acquitted, he was then for the lowest penalty for manslaughter—two years; that he and others contended for two years, until the message was brought them by the deputy sheriff, McDade; that he was in the mercantile business in Hempstead; the next day was Saturday, and large crowds of people usually came to Hempstead to trade on Saturday, and he could not afford to be away from his business that day. Rather than be locked up and kept away from his business until the next Monday, he was forced to agree to a verdict of three years instead of a verdict for two years. Some of the other jurors were contending for three years. Juror Weir stated that after they had retired John Mills, also a juror, in the presence and hearing of the jury, remarked that Price Vanduran was a bad negro; that he had been convicted and sent to the county farm, and that he guarded him on the county convict farm. This juror remonstrated with Mills for making such remarks to the jury. There was a great deal of testimony in regard to this from the jurors; and a bill of exceptions was reserved, embodying the facts in a general way that occurred in the jury room. This bill shows that while the jurors were discussing the bad reputation of the deceased, Mills remarked, in reply, that defendant was a bad negro, and had been sent to the county farm, and he had guarded him on the county farm. This was shown also by an affidavit. The state's attorney asked for a postponement until the next day, so as to send for the juror Mills. The court remarked that if Mills made said statement in the jury room he would fine Mills. This was on the 24th, and on the morning of the 25th Mills was brought into court, and testified: "When we retired to consider our verdict, we were first placed in the sheriff's office, and all agreed upon a verdict of guilty; that defendant was guilty, but that we differed as to punishment. Some wanted to give appellant five years, and some three years, and one juror, Galewsky, only wanted to give him two years. They were then carried upstairs into the grand jury room, and while there they were discussing the bad character of the deceased. He remarked, in fun, `that I had seen defendant at work on the county convict farm. I was riding the mail. I did not say that he had been convicted; nor did I say that the defendant was a bad negro. I made the remark that I had seen defendant on the county farm before we had agreed on our verdict in the case. After I made the remark, Jake Galewsky, agreed to the three years' punishment instead of two." The presiding judge signs this bill with the qualification, that the statement made by the court was after the hearing of the motion for new trial had been postponed from the evening of the 24th to the morning of the 25th, and was made after the court had left the bench, and was preparing to go to the hotel, and was made casually to the lawyers present. No exception was taken at the time, and it was the next day that counsel for the defense notified the judge that they desired a bill of exceptions to the remark. None of the jurors were present at the time he made the remark. The statement of facts on the contest over...