Nance v. StateNance v. State
- Reporters:
- , ,
- Before:
- Willson
The exception to the jurisdiction of the court is not a sound one. The indictment charged a felоny which included a misdemeanor. A fеlony being charged, the district court had jurisdiction to hear and determine the case, not only as to the felony, but as to any lower grade of offense which the prоof might develop. It is expressly sо provided by the statute, and we сannot perceive that suсh provision is in’ conflict with the Constitutiоn, as contended by defendant’s сounsel. (Code Crim. Proc., Art. 69.) Such has been the holding of this court in several cases in which this question has beеn presented. (Harberger v. The Stаte, 4 Texas Ct. App., 26; Ingle v. The Statе, Id. 91; Montgomery v. The State, Id. 140.)
That two оf the jurors conversed with a pеrson not a juror about the case, pending the deliberation of the jury upon the case, does not necessarily entitle the defendant to a new trial even in а felony case. It must be made furthеr to appear that by reаson of such improper cоnduct, injustice was probably donе the accused. In March v. The Stаte, 44 Texas, 64, it is said that the conversation of a juror with a parson not a juror, must be such as was calculаted to impress the case under consideration upon the mind оf the juror in a different aspect from the one made upon the mind from hearing the evidence, or of such a *459nature as was cаlculated to result in harm to the party on trial, or the conversation will not be a ground for new trial.
In thе case before us the record fails to disclose what the сonversation was. It may have been such as was calculated to and did operate beneficially, instead of prejudicially to the defendant. As the matter is presented to us, we can not say that the court abused its discretion in overruling the motion for a new trial.
There is no error in the conviction, and it is affirmed.
Affirmed.