Weaver v. State

• Decision Date: 26 March 1919
• Docket Number: (No. 5118.)
• Citation: 210 S.W. 698
• Parties: WEAVER v. STATE.
• Court: Texas Court of Criminal Appeals

210 S.W. 698

WEAVER v. STATE.

(No. 5118.)

Court of Criminal Appeals of Texas.

March 26, 1919.

Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.

P. C. Weaver was convicted of murder, and he appeals. Reversed and remanded.

Dickens & Dickens, of Austin, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

This appeal is from a conviction for murder with the death penalty assessed.

The tragedy took place near one of the public schools at which appellant was working as janitor. He shot and killed the deceased. According to the state's theory, the homicide was on malice engendered by the efforts of deceased to collect an account from the appellant. It was appellant's theory that he had been informed by his wife that the deceased had insulted and assaulted her, and that, when appellant on first meeting charged the deceased with this conduct, it was not denied, but the deceased used threatening words and gestures, which produced in appellant's mind a fear of losing his life. The wife of appellant testified to the criminal assault by the deceased and her communication of the fact to the appellant.

The issues of manslaughter and self-defense were raised by the evidence, and submitted by the court. Bills of exception were reserved to matters of procedure upon the trial; but, after careful examination of them, we are of opinion that they disclose no reversible error.

The jury retired to consider their verdict about noon on the 13th day of the month, and returned their verdict about 9 o'clock on the following morning. It appeared on hearing of the motion for a new trial that, after the jury had taken several ballots, they agreed that appellant was guilty of murder, but disagreed on the character of punishment. Appellant contends that, when this difference of opinion developed, the members of the jury were guilty of misconduct which vitiated the verdict, in that they received in their retirement evidence not developed upon the trial, and that these new facts were used against the appellant, and were instrumental in bringing about the decision of the jury in favor of the extreme penalty. It appears that the foreman and other members of the jury made statements in the presence of the jury bringing to their attention several instances occurring in Travis county in which, after conviction of persons accused of crime and sentenced to the penitentiary, as claimed by the jurors, the Governor had wrongfully interfered and used the pardoning power to shorten the terms of service of those condemned. In this discussion the murder of a Mr. Hornsby by Mexicans was disclosed; also, the murder of Eugene Smith, and a homicide committed by one Miller. These homicides were not known to some of the members of the jury, and they were in ignorance of the subsequent history of the trials of those charged with them. These were repeatedly referred to by the foreman and other members of the jury, and the jurors told that, if they failed to assess the death penalty against the appellant, the Governor would be guilty of misconduct like that in the cases mentioned and release him from the penitentiary, and that for that reason the death penalty should be assessed. Some of the jurors were Germans and possessed an imperfect knowledge of the English language. Other members of the jury did not understand the German language, and one of the German members of the jury, who was quite reluctant to consent to the death penalty, and the last to concur in it, was urged by one of his fellows using the German language to consent to the death penalty upon the ground mentioned. The jurors on their cross-examination declared that they were not influenced by these new facts, though some of them stated that they were considered by them.

Our statute provides that, "where the jury, after having retired to deliberate upon a case, have received other testimony," or where on account of "the misconduct of the jury the court is of the opinion that the defendant has not received a fair and impartial trial," a new trial shall be granted. Article 837, C. C. P. It has often been held that a statement of facts within the personal knowledge of one of the jurors, and which has not been developed upon the trial, is misconduct, and where the facts thus disclosed are material the law presumes that they injured the accused, and a new trial will be...