
    RICHARDSON v. STATE.
    (No. 3542.)
    (Court of Criminal Appeals of Texas.
    May 12, 1915.)
    1. Criminal Law <§=>1144 — Appeal — Presumptions.
    In a prosecution for homicide, newly discovered evidence of threats not communicated to accused, cannot on appeal be held ground for now trial in the absence of a statement of facts, for as such evidence would be admissible only on the issue of who began the difficulty, it must be presumed in favor of the lower court’s denial of a new trial either that the testimony was merely cumulative or that there was no such issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. <§=>1144.]
    2. Criminal Law <§=>957 — New Trial — Misconduct or Officer in Charge of Jury.
    Where most of the jurors testified that the deputy sheriff in charge did not give them information not brought out in the evidence, and one of them explained that he paid no attention to the deputy’s alleged remark because it was contrary to the facts shown in the evidence, it was proper to deny new trial sought on the ground that the jury had received information other than from the evidence. ,
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. <§=> 957.]
    Appeal from District Court, Grayson County; M. H. Garnett, Judge.
    Herbert Richardson was convicted of manslaughter, and he appeals.
    Affirmed.
    Freeman & Batsell, of Sherman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of manslaughter and his punishment assessed at four years’ confinement in the penitentiary.

No statement of facts accompanies the record, and the only questions presented for review relate to the question of whether or not the court erred in not granting a new trial on account of alleged newly discovered testimony, and the allegation that the jury received other testimony during the trial than that adduced on the witness stand. Mr. I/. O. Chapman testified that since the trial of the case in a conversation with L. J. Harden he heard Mr. Harden state he heard Abraham Richardson (the deceased) threaten to hill Herbert Richardson (the defendant). The record discloses that this threat had never been communicated to defendant, and it would only he admissible on the issue of who began the difficulty, if that was an issue in the case. In the absence of a statement of facts it is impossible for us to determine whether or not such testimony was material. We cannot tell whether or not it is but cumulative on this issue, or have any idea of whether or not such a threat, if proven, would have any tendency towards producing a different result. If we had the evidence before us adduced on the trial, we could intelligently pass on the •matter, but without it we cannot. The trial, court heard the evidence on the trial, and when this ground of the motion was presented to him, we must presume that he held it was but cumulative of other testimony; that the issue of who began the difficulty was not in the case, or that some other rule of law prevented him from granting a new trial on that ground.

On the issue of whether or not the jury received other testimony than that adduced on the witness stand, Mr. Loy Helvie, one of the jurors, testified that E. B. Kidd, the deputy sheriff in charge of the jury, had said during the trial of the case Ralph Richards (a witness for defendant) and Herbert Richardson, the defendant, were half-brothers, but also swears:

“I paid no particular attention to it, because it was proven on the witness stand they were not related.”

J. B. Green testified he never heard Mr. Kidd say anything about Richards and Richardson being related, but that he heard Mr. Kidd say:

“The Richardson set is a tough set.”

O. A. Allen testified that he did not hear Mr. Kidd say anything about the Richard-sons being a tough set, but that Mr. Kidd made a remark about Ralph Richards and Herbert Richardson being connected.

If this was all the testimony heard by the court, we would be inclined to hold that the deputy sheriff had made improper remarks in the presence and hearing of the jury; but the state introduced other jurymen, and Deputy Sheriff Kidd testifies:

“I will swear that I did not make any statement that the Richardsons were a tough set. There was something said about Herbert Richardson having some half-brothers, and I think I replied that I understood he had some half-brothers. I did not say that Ralph Richards was Herbert Richardson’s half-brother.”

J. W. Miller testified that Mr. Kidd was the officer in charge of the jury, and that Kidd at no time said the Richardsons were a tough set, or that Richards was a half-brother of appellant.

Another juryman, G. W. Ruddle, says that he never heard anything about Richards and appellant being half-brothers, nor that the Richardsons were a tough set. J. D. Coe, B. H. Estep, J. H. Tettleton, Mr. Gregg, and J. E. Burkett, all members of the jury, swear that the deputy sheriff made no such remarks.

Thus the court had before him one juryman who testified that Mr. Kidd had said the Richardsons were a tough set, and nine of the jury who testified that Mr. Kidd made no such remark. In addition to this Mr. Kidd swears positively he did not do so.

The court also had before him two jurymen who testified that Mr. Kidd said that Ralph Richards and Herbert Richardson were half-brothers, or related. Mr. Kidd says he made no such remark, and eight jurymen swear that no such remark was made. In addition to this, the juryman who says that he heard Mr. Kidd make the remark also testifies:

“I paid no attention to the remark, because it was proven on the witness stand they were not related.”

If the eight jurymen and Mr. Kidd were mistaken, and the two jurymen right, and he had inadvertently made such a statement, and it was subsequently proven on the witness stand they were not related, certainly such remark could not and would not have influenced the jury. There was no error in the court overruling the motion.

The judgment is affirmed. 
      <g=?For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     