
    (86 Tex. Cr. R. 298)
    LUMAN v. STATE.
    (No. 5577.)
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1919.)
    Ckiminal law <⅞=>857(2) — Misconduct ox juey.
    In homicide prosecution, juror’s discussion of fact that accused had been indicted for another killing, and of fact that a codefendant had been previously tried and convicted, held misconduct justifying reversal, where such facts were not in evidence and were unknown to some of the jurors before such discussion, and where, on first ballot cast before such discussion, jurors were evenly divided for and against conviction.
    Appeal from District Court, Haskell County ; W. R. -Chapman, Judge.
    Will Luman was convicted of manslaughter, and he appeals.
    Reversed.
    W. H. Murchison, of Haskell, and Cunningham & Oliver, of Abilene, for appellant.
    Alvin M. Owsley, Asst Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of manslaughter, and allotted five years in tbe penitentiary.

It is unnecessary to make a statement of the case in reference to the facts. The questions presénted for revision involve misconduct of the jury and argument of one of state’s counsel. With reference to the argument of the prosecuting officer, it may be sufficient to say for this appeal that it is disposed of upon the statement that such argument should not occur upon another trial. This is said in view of the fact that the case will be reversed upon the misconduct of the jury. Portions of the argument of the prosecuting attorney it seems led to some of the alleged misconduct on the part of the jury.

The bill of exceptions shows, in substance, that after- the jury retired and before arriving at their verdict matters were mentioned, and more or less discussed, which were not introduced in evidence. Appellant was convicted for killing a man by the name of Bostick. The bill, in brief, recites that the jury mentioned and discussed the fact ■that appellant had been indicted for the killing of Judge C. O. Higgins, and also the fact that Rasberry, a codefendant of this appellant, had been previously tried in Jones county, and allotted a term of 10 years in the penitentiary. Neither of these questions was before the jury in admitted testimony. It occurred after the retirement of the jury and before reaching their verdict. Upon the first ballot after the jury retired they stood six for conviction and six for acquittal. It was stated by one or more of the jurors in the jury room that appellant was under indictment for killing Judge Higgins, and that Rasberry, appellant’s codefendant, had been convicted in Jones county, and was then serving a term of 10 years in the penitentiary, and it was also stated that Rasberry had not fired a shot, but had been given 10 years, while appellant who did the shooting ought to have 20 or 25 years. It is shown that the facts stated by the jurors were unknown to a number of the jurors until it was mentioned in the jury room. A number of the jurors were introduced as witnesses on the trial of the motion for new trial setting up these matters. The testimony is not much in contradiction as to what occurred from the testimony, of these jurors. One or two of them did not hear much about it, and seem to have paid but little attention to it, and one of them, perhaps the foreman, stated to the jury, at the time they were discussing these matters, it should not be considered by them. They all testified substantially that, these matters did not influence them in finding their verdict. One of them, however, did state it may have affected his action in assessing punishment. Pour of the jurors did not testify in this regard, and were not placed upon the stand. After deliberating on this matter and after hearing this testimony, the jury returned a verdict for manslaughter, and gave appellant 5 years without suspended sentence, which he had requested them to do. We are of opinion that this is such misconduct as will require a reversal of this judgment. The matter has been discussed frequently and elaborately, and so much so that the writer does not feel called upon to elaborate the questions. The Horn Case, 50 Tex. Cr. R. 404, 97 S. W. 822, seems to be very much in point. The questions involved are very similar. See, also, McDougal v. State, 81 Tex. Cr. R. 179, 194 S. W. 944, L. R. A. 1917E, 930; Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456; Weber v. State, 78 Tex. Cr. R. 253, 181 S. W. 459; Weaver v. State, 210 S. W. 699; Mills v. State, 74 Tex. Cr. R. 137, 168 S. W. 88; Mizell v. State, 197 S. W. 303; Chenault v. State, 201 S. W. 658. Judge Henderson, in the Horn Case, supra, discussed these matters at length, as did Judge Morrow in the Weaver Case, supra, and Judge Hurt in the Mitchell Case, supra. Judge Morrow discussed the matter at some length in the McDougal Case, supra. See, also, Gilbert Case, 215 S. W. 106.

We are of opinion that this misconduct of the jury was such as to require a reversal of this judgment; and it is accordingly so ordered. 
      <®c»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     