*1 642
Rеlator, System, an immate of the Texas Prison seeks his against release, alleging judgment him is of conviction following reasons. void May 21, that relator on record us reflects was before
1945, pending plead guilty in the to indictments convicted County, Texas, causes num- criminal in district court Harris 55419, 55417, in punishment 55421 and 55423. The each bered еffectively years. case was for a term of two were sentences years, cumulated to make total 8 which relator does not question. day guilty plead
theOn same relator convicted and was pending 2 indictments No. the Criminal District Court County 55418, Harris in causes numbered 55420 and 55422. punishment years in the 2 and for first two cases yеars 3 in the last. The 55418 the follow- sentence in contained ing order, cause cumulative No. “Sentenced with 55423.” Since court, 55423 ineffective. No. Ex was in a different cumulation is parte Coleman, 2d 351. 261 S.W. Sentence in cumulated and sen- cause No. 55420 was tence 55422 was cumulated to 55420. ineffective,
Since the sentence in 55418 was all Harris County years. in 8 sentences served July 2, 1945,
Relator was further sentenced in causes years. numbered period 16037 and of 8 He by proper has it known made court certificate to this System from the Texas Prison he credit for time has years July served of 8 excess from and after he discharged. is therefore entitled tо be It is so ordered.
Earl Moore v. State 27,297. January No. *2 Ramsey Ramsey, by Ramsey, Augustine, & ap- Ben San pellant. Doherty, County James A. Attorney, Augustine, San
Wesley Dice, Attorney, Austin, State’s for the state. MORRISON, Presiding Judge. whisky dry area; offense sale punish- is the of in a the
ment, jail six months in and a of fine $750.00. question alleged
The sole jury review is misconduct it that received new and additional evidence its delibera- tions. challenges sufficiency state the of the motion for new
trial. The jury motion first recites the which misconduct is forth; recites, hereinafter set it then “That thе aforesaid in- attorney formation came to the defendant’s conversations jurors, to-wit, with two of said rell.” The motion is sworn to E. J. T. Birdwell and M. Car-
by appellаnt, the and attached separate attorney, is a appellant’s thereto affidavit of who was having named in the motion as learned of the misconduct. expression question latest found this court this is in Prince v. 158 Texas Cr.
wherein we said: policy discourage ‘fishing expeditions’
“The law is to jury impeach jury an effort a If has verdict. misconduct occurred, hearing, apрellant only then the is entitled to a but hearing where he has of such is learned misconduct before would had. Where the misconduct was of nature that such only by jury, of a known then an affidavit be juror members of the proper. method. is But this is not the exclusive Where affidavit, appellant an it is incum- is unable secure such further, uрon this, why, and, to show bent him to show actually believing grounds
reasonable that such misconduct by illustration, might an affidavit For be done occurred. person, reciting hаd told of some member misconduct, by in his or them of followed affidavit though so, that, requested do behalf to effect also had refused to make an affidavit thеreto. This put any the trial court on done method that would other is done a mo- occurred. This not notice misconduct had court, T has which think misconduct occurred tion tells trial and, though it, jury to verify to examine the I want unable ” determine whether or not such did occur.’ comply fully with us not
While motion before here doеs forth, does the motion illustration heretofore set an to make requested recite *3 refused, concluded that affidavit and we have that purview of whiсh follows. it comes within the the sentence We hold the motion sufficient. to be ap- From the motion new trial statement of facts on for pears deliberating was was a statement while appellant made of their one that he knew the number bootlegging years. that he had At another been for a number of juncturе during made their the statement was deliberations gone peni- appellant Negro a had and had to the killed tentiary for such state- it. Juror Birdwell testified that before jail ments were made he had voted a fine and no of $500 was he verdict which sentence and that voted thereafter rendered. they
The jurors statе called some of the who testified testify they not did not did hear these statements made but no such statement had been made. 2d State, In Jordan v. S.W. 158 Texas Cr. whisky of we reversed a unlawful sale conviction jurors their delibera- where one told his fellows of the bought whisky a personally prior tion that had occasion he Rep. 299, appellant. from the v. Pafford approval" in the case. is cited with Jordan jurors The of new and harmful statements constituted rights appellant’s to in violation constitutional evidence of against by the him. be confronted witnesses judgment is reversed the cause remanded. Judge, concurring. DAVIDSON,
I concur in casе uncon- the reversal because the a upon appellant’s troverted evidence adduced motion for new deliberations, jury, during trial their received shows that new, other, prejudicial and additional harmful and evidence appellant. P., requires granting
Art. Sec. Vernon’s C. C. supporting a new trial under such cоnditions. authorities the rule are found numerous and will be collated under statute.
WOODLEY, Judge, dissenting. excepted
The state because it the motion for new trial supported was not juror, pointing the affidavit out that being transpired only the matters in the as could have jury room, hearsay necessarily were and his as counsel. The motion shows on that as to the its face hearsay. the matters were support trial court heard the evidence adduced
allegations appear and overrulеd the It does that such motion. exception. Appellant order was entered on the made no state’s explain effort to excuse or person his failure to furnish affidavit position or other who know the facts *4 regarding transpired jury what in room. the State, Rep. 363,
Valdez v. 157 2d Texas 248 Cr. S.W. support exception, сited to the trial court in of the state’s and following the decisions of this court affidavit of hold that the person position Clay some in to know the facts essential. v. is State, State, Rep. 32, 180; 157 v. Texas Cr. 246 2d Allala S.W. 207; State, Rep. 157 Texas 250 158 Cr. S.W. 2d Hicks v. 409; Rep. 45, State, Texas Cr. 251 155 Texas 2d v. S.W. Moore Rep. 147, 711; State, Cr. 154 Texas 2d v. 232 S.W. Henderson Rep. 376, Statе, 821; Hughes Cr. 227 S.W. 2d v. 106 Texas Cr. Rep. 550, 293 575. S.W.
Other to a show the infor cases refer failure to source informant, allege affiant, mation of the the or name the lay by rule. juror, stаtement the same was made but down Vyvial 83; Toms State, Rep. v. Texas 10 2d 111 Cr. S.W.
646 State, Rep. 264, 174; 200
v. 150 Texas Cr. 2d v. S.W. Vowell 214; State, Rep. 493, 156 244 2d v. Texas Cr. S.W. Fielden State, Rep. 597, 198. Texas Cr. S.W. 2d
In Prince v. Judge quotation аppearing Presiding the Morrison’s in pointed opinion, we out not the that the affidavit of a occurring by jury method which misconduct of exclusive the raised, jury roоm the be and said: affidivit, the such an “Where is unable to secure this, and, further, upon why, it incumbent him to is show believing grounds to show such misconduct reasonable actually occurred.” bring exception
Appellant the did not himself under alleged rule when he to his the information came wholly jurors. conversations with named He failеd two cited, comply re- with stated the rule in all of cases which bring quires secured; him- that the affidavit of or to case, exception self within Prince which mentioned upon him that he is unable to secure makes incumbent to show affidavit, ground why, as a reasonable well as to show believing alleged actually the miscоnduct occurred. appel- exception The state’s should been sustained and have bring required conform rule stated himself lant to the or exceрtion. within the cited, the authorities the action the court in over-
Under ruling upheld new motion for trial should be as within being judge, pleading discretion of sufficient the trial quеstion receipt of evidence raise my deliberations. If are to be overruled their cases brethren, they in order bar be informed. so should state my respectfully
I enter dissent. F. D. Pierce v. State *5 27,236. No. December Reformed) Rehearing (Original Opinion Denied January 12, 1955