30 Tex. Ct. App. 459 | Tex. App. | 1891
This is a conviction for an assault with intent to murder.
In support of the motion for a new trial, one of the jurors who tried the case made affidavit that after the case was submitted to the jury, and they had retired to consider of their verdict, one of the members of the jury separated himself from his fellows without the consent of the court or of counsel, and remained separate from the jury as much
Upon this showing it is urged that the court below erred in refusing a new trial. It is expressly provided by the code (article 687), that “after the jury has been impanelled to try any ease of felony, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the consent of the attorneys representing the State and the defendant, and then in charge of an officer.” The consequence of the separation not permitted by law is not prescribed by the code. The authorities are not harmonious, but from them we gather this rule: “That when there is a strong probability that injustice could have been done, the court will set aside the verdict.”
Let us suppose, while separated the juror has been bribed to return a verdict against the defendant. Is it at all probable that he would disclose this fact? We think not. Again, the separating juror may be telling the truth when he state's in his affidavit that he did not converse with any one about the case, nor did any one mention the matter to him. We say this may all be true, and yet he may have been influenced. He does not say that no one mentioned the case in his presence or hearing. In support of the above proposition we cite Warren v. The State, 9 Texas Ct. App., 630; Wilson v. The State, 18 Texas Ct. App., 576; Wright v. The State, 17 Texas Ct. App., 152; Defriend v. The State, 22 Texas Ct. App., 571; Grissom v. The State, 4 Texas Ct. App., 389; Early v. The State, 1 Texas Ct. App., 248. The judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.