Lead Opinion
The appeal is from a conviction for violation of the liquor law with a penalty of nine months in jail and a fine of $750.
Thе evidence shows that appellant was apprehended in the city of Mineral Wells, at four o’clock in the morning, while driving on the streets, with three cases of liquor containing seventy-two pints. Appellant plead guilty before a jury on thе 10th day of August, 1948. The state, thereupon, introduced evidence showing the circumstances of the arrest and the quantity of liquоr in his possession, as stated above. The jury, on the same dаy, returned its verdict assessing what is alleged to be an excеssive punishment.
The appellant was not satisfied and filed his motion for new trial. In this he alleges that John Crabtree, one of the jurors, was employed by the county and worked in and about the court house; that he knew of the former convictions of the defendant and that he took into consideratiоn in fixing the penalty in this cause such former convictions and wаs influenced by such knowledge; that, thereby, he was not a fair аnd impartial juror. When the motion for new trial was heard, Crabtrеe was the only juror called to testify. He stated that he did not know the accused at the time he was selected to try the case and he did not know that the defendant had evеr before been convicted of violating the liquor laws of the State of Texas until they had received the casе and were in the jury room deliberating. He said that one of thе jurors stated to the jury, while in the room deliberating on this casе and before they arrived at a verdict, that the accused had been convicted a number of times of violation of liquor laws in Palo Pinto County. He did not remember the name of the juror who made such statement. He says that was the first that hе knew of his former convictions.
It will be observed that the allegations set out in the motion for new trial were to the effect-that Crabtree himself was an unfair juror. It is not shown that he, or any other juror, was questioned regarding his qualifications as a juror before he was
Finding no reversible error, the judgment of the trial court is affirmed.'
Rehearing
ON APPELLANT’S MOTION FOR REHEARING.
Appellant urges that the facts introduced upon the hearing of the motion for new trial show that the jury, after retiring to deliberate upon the case, received other testimony and that, under the provisions of Sec. 7 of Art. 753, C. C. P., а new trial should have been awarded.
Nowhere in the motion for new trial do we find an assignment by which it may be said that the statе or the trial court was placed upon notice that appellant was relying upon such fact for a new trial.
In Harvey v. State,
The motion for rehearing is overruled.
Opinion approved by the Court.