*1 Patsy Jean Montello v. State 26,920. May 5,
No.
Clyde Gordon, Jr., Houston, appellant. Ewing Werlein, Attorney, King Haynie, District Assist- C. ant Attorney, Wesley Dice, Attorney, District Aus- State’s in, for the state.
WOODLEY, Judge. murder;
The punishment, conviction is for penitentiary. shooting killed her husband him in head range. signed pistol with a .22 caliber fired at close She eye fession which was introduced in evidence anwas shooting. witness to the rejected appellant’s plea of self-defense raised testimony sufficiency behalf,
her as a in her witness own questioned. evidence is not appeal The sole contention raised in is that overruling appellant’s court erred motion for new trial based upon jury misconduct and the other its deliberation. though complains had instructed the court No. 1 Bill state, counsel for the to consider the remarks capital world murder effect that Houston was
to the the something horrible jury’s duty these it to do about and was the crimes, retired, jury that after the there was some conversation the capital the murder the fact that Houston was about world. Judge King, presided motion,
Upon the on Attorney trial, and Assistant District Morris attorney that no such made the state. jury It conversa- is shown that in the room there was some capital of tion or mention of Houston the murder However, any dis- world. there is no something jury’s responsibility or “to do cussion mention these crimes.” about horrible
findWe error in this reversible bill.
In Bill 2No. misconduct claimed that while delib- erating brought foreman attention of the had said read article which substance average person a life sentence served an aver- received age years “prior pardoned by the of 8 the time Parole Board State of Texas.” Montgomery jury. called
F. was foreman of the W. by appellant’s testified, in answer as witness counsel interrogation, part “Q. you Montgomery, Mr. room did went into you jury that discuss with some of the other members of you had an in substance read average person received a life average eight years they were prior served on an time pardoned by Board of Texas? the State of suggestive. leading object
“Mr. Gaboon: We “A. Yes. did.We
“Q. long Montgomery, approximately Mr. did that how ap- go brought up, on? A. It but there wasn’t preciable discussion on it.
“Q. you say many brought Could how up, ap- times it was proximately? say I’d two or three times.” brought up you You you it others discussed it or told you about the matter right.” newspapers? had read in the A. That’s immediately
This was followed re- cross examination: brought up When that was I will ask whether
someone problem? remonstrated and said that’s not our
“Mr. object. Gordon: I *3 said, Was trouble,’ that ‘That’s not then.ceased? There of them were three that
that. And pur- after any that did ever consider that for
pose arriving your in verdict? A. No sir.” jurors testified, All of nothing found testi- in their mony appears advantageous which more of claim jury misconduct. pointed judge As hearing, out the trial personal knowledge foreman did not claim to have as to average time in which a life sentence was served and made such a declaration as fact. in He said he had seen eight any obtaining in unsuccessful answer from way punishment any that their verdict as was in influenced or affected the discussion or mention news- paper article. in-
It is common we in state have law; penitentiaries determinate sentence inmates of the conduct, good may this state for receive commutation of time may special necessary receive credits overtime and essential work. It is also common in a Board have Texas Governor, that, together
of Pardons and Paroles and
101 granting clemency power in them exercise the vested punish- way pardons, paroles commutation in the ment. find no such of new evidence or misconduct of the We regard in to the discussion of the article as
call for reversal. holding support
This in Plasentilla finds 152 187, Cr. 216 S.W. 2d where there a discussion got years room about the fact if the defendant being pardoned, only he would he serve or 5 before and if got years probably would he serve 15 or 20 be- before ing pardoned. affirming conviction,
In opinion quoted approval with Walker v. 150 Texas “It is matter of common prisoners are credited with behavior, extra time for and the state- ment of Mr. Bridwell inwas the nature of an might arise in most attempt- case where the ing agreement to reach an as to the where the entertained judge, different ideas. Culpepper, evidence of Mr. grant declined new trial. He was
justified concluding expressed that if the foreman appellant probably get behaved himself out months, fourteen or sixteen aon two it was *4 demanding misconduct a new trial.” rehearing On we said: juror “A after all is human with the accumulation knowledge usually through comes to one living undergoing experiences. au- cannot be made an
tomaton and divested of matters have come under ob- servation and are of fairly common to most well- persons. informed experiences peculiar True it is that certain personal him of knowledge, which he has thereof instances members, be cited to his fellow such recitation doubtless become other and jury, new mat- evidence before the but as to knowledge, ters of common cannot taken from him and same be deprived he be practically of the and utilization of that which persons all juror quoted know. The of the original seems to an answer be con- ‘Q. juror tention herein when the said: And it was discussed that if a man behaved pardoned?’ himself he would be to which ” replied, all, ‘A. everybody That is knows that.’ We think the applicable Plasentilla case is here. One of jurors referred to the parole discussion in connection with the board as job, follows: “That if lady we did our reform- requirements ed or met the Board, train- work, ed they line of would tend to that end of business; beyond training that was they what did or how did it.” Also several of the knew that persons get victed could their sentences reduced behavior and were familiar with parole the fact that there was a board.
The evidence is sufficient to sustain the conviction and find no reversible error. judgment is affirmed. Judge
MORRISON, (Dissenting.) my The fact which three brethren overlook is that at least jurors changed question their vote on the twenty ninety-nine after the foreman made the statement per- that he had read in a serving son who received a pardoned life sentence was only eight me, simple, To easily fair be: workable rule would juror Where makes a statement of fact or law any appreciable true and where number of the vote greater punishment a much making state- ment, then the case should mis- be reversed account of opinions conduct. As I view the court in Price v. Texas Cr. 199 S.W. 2d Jackson 748, they support such a given application rule. If here, a would follow. reversal I respectfully my enter dissent.