206 S.W.2d 88 | Tex. Crim. App. | 1947
The appeal is from a fine of $500.00 and ninety days in jail on appellant’s plea of guilty to a charge of possessing intoxicating liquor for the purpose of sale in a dry area.
The plea of guilty was to the court, but the evidence was presented to the jury who fixed the penalty. On a motion for a new trial three of the jurors were called and gave testimony as to the conduct complained of. Mr. King, the foreman, said that one of the jurors asked if anybody knew whether or not this was Oscar’s first offense of this character. Another juror said, “Well, he had heard that Oscar got caught last fall but didn’t know whether this was the case or not, or whether this was another one. We all kind of wanted to'know.” The jurors then asked their foreman to make inquiry of the County Judge, but upon finding they would have to go back into the court room they decided not to do it. Mr. King said further, “We figured that if he had been bootlegging that if we were going to try to stop him that we ought to set it pretty high. That that would be the only way to stop him.”
Mr. Mobley, another juror called as a witness, endorsed the statement which Mr. King had just made and then said, “Well, everybody kept talking about it and we all kind of wanted to know whether it was or not. We wondered why he didn’t take the stand or his lawyers didn’t plead that it was his first offense. Well, we figured that if he had been bootlegging that he ought to have enough money" to pay a heavy fine.”
Mr. Atkinson, another juror, was called. He endorsed the statements made by the jurors King and Mobley, but made no statement about any reference to the defendant’s failure to testify. They based their verdict on a conclusion reached by all that they should “set the fine high enough that it would stop him from bootlegging.”
It appears then that the discussion with reference to his
. The judgment of the trial court is reversed and the cause is remanded.