62 S.W.2d 130 | Tex. Crim. App. | 1933
The offense is murder; the punishment, death.
It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Zelma Arnold by striking her with a rock.
Deceased was appellant’s wife. Appellant had been away from deceased about two years. During his absence Roy High-tower lived in the same house with deceased. Upon his return, appellant and deceased took up their residence together. According to the version of appellant’s witnesses, deceased and appellant lived together as man and wife. The state’s testimony tended to show that appellant and deceased merely lived in the same house, and that during such time deceased was contemplating a divorce suit against appellant. In a short time after appellant’s return, deceased instituted divorce proceedings. According to the state’s testimony, appellant stated to deceased that he would kill her the day the divorce was granted. Again, the testimony of the state was to the effect that appellant had made other threats against the life of deceased. It appears from the testimony that prior to the homicide appellant and Roy Hightower had had a difficulty; and that later Hightower asked a friend to tell appellant that he (Hightower) did not want his wife. According to the testimony of some of appellant’s witnesses, deceased had on one occasion stated that appellant was wrong in believing that she was going to live with him; and, in the same connection, declared that she was going away with Roy Hightower.
A witness for appellant testified that he had a conversation with appellant shortly before the homicide, in which appellant told him that he and deceased were going to look at a house which they intended to rent. Other witnesses for appellant testified that appellant appeared to be nervous and excited on the day of the homicide. Many witnesses for appellant testified that appellant was a man of low mentality, and others testified that, in their opinion, he was insane.
The state took issue with appellant on his plea of insanity and introduced many witnesses, among them being physicians, who testified that in their opinion appellant was sane.
In his motion for new trial, appellant alleged that the jury, after retiring to deliberate upon the case, received other testimony. The specific complaint was that, before the penalty was determined upon, the statement was made by some of the jurors that appellant had been confined in the penitentiary during the two years’ separation from his wife; and further that on one occasion, appellant had been convicted and given the death penalty in another case, which later had been set aside and a life sentence assessed, and that eventually he had been pardoned. The testimony complained of had not been received in evidence during the trial. However, on the trial one of the witnesses had volunteered the information that a letter she had seen had been written by appellant from the “pen.” Upon objection by appellant’s counsel, this statement had been withdrawn from the
We are of the opinion that the learned trial judge fell into error in refusing to grant the motion for new trial. Subdivision 7 of article 753, C. C. P., provides that a new trial shall be granted in cases of felony where the jury, after having retired to deliberate upon a case, have received other testimony. Information given by one of the jurors to the others is new and other testimony within the meaning of the statutes. See McDougal v. State, 81 Texas Crim. Rep., 179; Hanks v. State, 99 Texas Crim. Rep., 218. Where, after retirement, the jury receive other evidence damaging to the appellant, the presumption of injury will obtain. Brown v. State, 101 Texas Crim. Rep., 639; Holland v. State, 298 S. W., 898. Under the circumstances, we are unable to reach the conclusion that the matters constituted a bare reference to former convictions. They evidently furnished a basis for an argument made by some of the jurors in an effort to convince the juror voting for 99 years that it would be proper to assess the death penalty. Notwithstanding some of the jurors already knew the facts relating to appellant’s former convictions, it occurs to us that, when such jurors resorted to such facts for the purpose of influencing others, the matter presents error. The references in question might have made the jurors who voted for the death penalty more steadfast in their position, and may have influenced the juror who stood for 99 years to surrender the position he had taken. This being a case in which the extreme punishment has been assessed, we would not feel warranted in speculating as to the injury resulting to appellant from the improper references to his former convictions. We disclaim any intention of predicating a reversal upon the testimony showing reference to the “Ratliff Case.”
We think it was improper for the state to prove that some time before the homicide appellant had a conversation with an undertaker, in which he asked him how his business was progressing, and that, upon receiving a reply that it was quiet, stated to the undertaker that he thought he would have some more business in a few days. This statement was too indefinite to be taken as a threat against deceased.
It is shown in bill of exception No. 6 that a witness for appellant was required to testify on cross-examination that deceased
The judgment is reversed and the cause remanded.
Reversed and remanded.
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.