
    (85 Tex. Cr. R. 111)
    WEAVER v. STATE.
    (No. 5118.)
    (Court of Criminal Appeals of Texas.
    March 26, 1919.)
    1. Criminal Haw @=»925½(3) — New Trial-Misconduct of Juror.
    Under Code Cr. Proc. 1911, art. 837, the action of jurors, after retirement in a trial for murder and after a disagreement as to character of punishment, in stating instances in which the Governor had used pardoning power to shorten terms to penitentiary in urging the death penalty, is ground for a new trial.
    2. Criminal Law <®=>S62(1) — Confrontation of Witness — Statement of Material Fact by Juror.
    Evidence coining to the jury otherwise than that introduced under supervision of presiding judge, as by the statement of a juror after a retirement, violates the constitutional provision declaring that one accused of crime shall be confronted with the evidence against him, as such conduct denies cross-examination.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    
      P. O. Weaver was convicted of murder, and he appeals.
    Reversed and remanded.
    Pickens & Dickens, of Austin, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a conviction for murder with the death penalty assessed.

The tragedy took place near one of the public schools at which appellant was working as janitor. He shot and killed the deceased. According to the state’s theory, the homicide was on malice engendered by the efforts of deceased to collect an account from the appellant. It was appellant’s theory that he had been informed by his wife that the deceased had insulted and assaulted her, and that, when appellant on first meeting charged the deceased with this conduct, it was not denied, but the deceased used threatening words and gestures, which produced in appellant’s mind a fear of losing his life. The wife of appellant testified to the criminal assault by the deceased and her communication of the fact to the appellant.

The issues of manslaughter and self-defense were raised by the evidence, and submitted by the court. Bills of exception were reserved to matters of procedure upon the trial; but, after careful examination of them, we are of opinion that they disclose no reversible error.

The jury retired to consider their verdict about noon on the 13th day of the month, and returned their verdict about 9 o’clock on the.following morning. It appeared on hearing of the motion for a new trial that, after the jury had taken several ballots, they agreed that appellant was guilty of murder, but disagreed on the character of punishment. Appellant contends that, when this difference of opinion developed, the members of the jury were guilty of misconduct which vitiated the verdict, in that they received in their retirement evidence not developed upon the trial, and that these new facts were used against the appellant, and were instrumental in bringing about the decision of the jury in favor of the extreme penalty. It appears that the foreman and other members of the jury made statements in the presence of the jury bringing to their attention several instances occurring in Travis county in which, after conviction of persons accused of crime and sentenced to the penitentiary, as claimed by the jurors, the Governor had wrongfully interfered and used the pardoning power to shorten the terms of service of those condemned. In this discussion the murder of a Mr. Hornsby by Mexicans was disclosed; also, the murder of Eugene Smith, and a homicide committed by one Miller. These homicides were not known to some of the members of the jury, and they were in ignorance of the subsequent history of the trials of those charged with them. These were repeatedly referred to by the foreman and other members of the jury, and the jurors told that, if they failed to assess the death penalty against the appellant, the Governor would be guilty of misconduct like that in the cases mentioned and release him from the penitentiary, and that for that reason the death penalty should be assessed. Some of the jurors were Germans and possessed an imperfect knowledge of the English language. Other members of the jury did not understand the German language, and one of the German members of the jury, who was quite reluctant to consent to the death penalty, and the last to concur in it, was urged by one of his fellows using the German language to consent to the death penalty upon the ground mentioned. The jurors on their cross-examination declared that they were not influenced by these new facts, though some of them stated that they were considered by them.

Our statute provides that, “where the jury, after having retired to deliberate upon a case, have received other testimony,” or where on account of “the misconduct of the jury the court is of the opinion that the defendant has not received a fair and impartial trial,” a new trial shall be granted. Article 837, O. O: P. It has often been held that a statement of facts within the personal knowledge of one of the jurors, and which has not been developed upon the trial, is misconduct, and where the facts thus disclosed are material the law presumes that they injured the accused, and' a new trial will be ordered unless the presumption of injury is rebutted by the evidence introduced on the motion for a new trial. 12 Gyc. 727; McDougal v. State, 194 S. W. 946, L. R. A. 1917E, 930, and cases therein cited. And the mere conclusion of the juror that he is not influenced is not sufficient rebuttal. In Lankster v. State, 43 Tex. Cr. R. 298, 65 S. W. 373, it is said:

“The affidavits of jurors who are guilty of misconduct to the effect that they were not prejudiced by what they did is of little weight. * * * Such an affidavit is to be expected from jurors seeking to justify themselves for their own misconduct.”

On the subject, Presiding Judge Hurt, in a leading case, said:

“It would appear from this [statute] that, if the jury received other testimony after having retired to deliberate upon the case, a new trial is mandatory. Certainly it would be so where the testimony is of a material character, and it makes no difference whether the jury received the testimony from one of their number, or from others.” Mitchell v. State, 36 Tex. Cr. R. 278, 36 S. W. 456.

Touching the materiality of the new facts adduced, and the alleged misconduct of the jury relating thereto, we are referred to Kannmacher v. State, 51 Tex. Cr. R. 123, 101 S. W. 238, wherein it is held that proof that one of the jurors was not originally in favor of the death penalty, but consented to it because the jurors thought that wholesale killings in the county should be stopped, and that the death penalty should be inflicted to effect that purpose, was of such material character as to require a reversal. In Crow’s Case, 47 Tex. Cr. R. 226, 82 S. W. 1033, a statement by one of the jurors that he knew the accused and did not like his morals, in connection with, a discussion by the jury of evidence not introduced on the trial to the effect that there was a gang of criminals in the community and that a purse had been made up to further their prosecution, was held so prejudicial as to require a reversal. In Hopkins’ Case, 68 S. W. 986, the death penalty on plea of guilty of rape was reversed because of the reference by one of the jurors while in retirement that the accused had been previously tried for a similar offense and where the jury discussed without evidence the probability of consent. In the early case of Anseliicks v. State, 6 Tex. App. 537, a reversal of a conviction for rape was ordered because one of the jurors in retirement stated, in the presence of his fellows, that he knew one of the witnesses for the accused and that she was unworthy of credit. And the same holding was made in McKissick v. State, 26 Tex. App. 673, 9 S. W. 269, and in Lucas v. State, 27 Tex. App. 324, 11 S. W. 443; and in Mason’s Case, 16 S. W. 766, a conviction of arson was reversed because of a discussion by the jury in their retirement of the burning in the same community of other buildings by unknown parties. In a recent case, Walker v. State, 206 S. W. 96, the remarks of the district attorney in his argument in which he instanced a case which he had prosecuted on facts similar to those in the case on trial, in which the death penalty had been assessed, were held reversible on the ground that it was stating to the jury a fact not admissible in evidence and not testified to under oath, which was prejudicial to the accused on trial.

It is contemplated by the statute that the evidence upon which a jury is authorized to render a verdict against one accused of crime is to be that alone which was introduced under the supervision of the presiding judge. Evidence. coming to the jury otherwise is not only a transgression of the statutory law, but violative of the constitutional provision which declares that one accused of crime shall be confronted with the evidence against him. New evidence given in the jury room comes under circumstances denying the accused the opportunity to test its truth by cross-examination, or to controvert its accuracy by other testimony. In the instant case, if upon the trial'an offer had been made to prove that the incidents mentioned took place, the judge would doubtless have refused to admit it. Without his sanction, however, such evidence was given the jurors and used against appellant upon the vital question of life or death, and after its receipt, and upon its consideration, the jurors who had previously refused to consent to the death penalty concurred in its infliction. The facts developed upon the motion for a new trial indicate that the verdict assessing the death penalty does not reflect the deliberate judgment of the members of the jury upon the evidence against appellant legally before them, but that some of them were induced to agree to it because a similar punishment had not been inflicted in other cases of which they knew nothing, except such things as were told them during their retirement, and because in such cases the Governor had, in the opinion of the jurors relating the extraneous facts, been overleni-ent in the exercise of the pardoning power.

The facts adduced on the hearing, of the motion confirm rather than repel the presumption of prejudice which the law indulges when it is shown that new and material facts have entered into the verdict, and we think there was error in refusing to grant a new trial, to correct which we deem it our duty to order a reversal of the judgment.

The judgment is reversed, and the cause remanded. 
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