Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 355
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1875.] AUSTIN v. THE STATE. 355
Statement of the case.
FRANK AUSTIN V. THE STATE.
1. INSTRUCTIONS. The fact that the charge read to the jury on the trial of
a criminal cause bore the style and file-mark of another criminal cause,
raises no presumption that it had been used on the trial of another party,
nor, if applicable to the case, would the fact that it had been so used
be a ground for new trial.
2. MISCONDUCT OF JURY. A statement made by one juror to another, after
they had retired to consider of their verdict, in regard to the character of
the accused, is not the character of misconduct contemplated by the
statute which would authorize a new trial.
8. NEW TRIAL. To authorize a new trial on account of the misconduct of
the jury, it must be shown that the defendant has not received a fair
and impartial trial by reason of such conduct.
APPEAL from Harris. Tried below before the Hon. Samuel
Appellant was indicted in the Criminal District Court of
Harris county, on the 3d of January, 1874, and at the June
term, A.D. 1874, upon a plea of not guilty, was found by the
jury guilty of murder in the second degree, and his punishment
assessed at fifteen years' imprisonment in the penitentiary.
On the night of December 21st, 1873, Edward Hughes, then in
company with Austin, entered a grocery store in Harris county,
both apparently on friendly terms. After drinking together,
Hughes sat down on a keg, soon after which Austin threw him
off on the floor. Hughes arose, and taking a knife from his
pocket, with which he had just been skinning an animal, stpck
it in the counter, from which it was taken by another party and
put away, after which Hughes said to Austin that he intended
to stamp him; upon this, Austin jumped from the counter
where he had sat down, and tripped -Hughes up, whereupon a
scuffle ensued, in which Hughes kicked Austin in the eye, upon
this, Austin seized him by the leg and called for a weight from
the scales, which not being furnished, he remarked that he
could do without it. He thereupon began to stamp Hughes
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/363/: accessed March 24, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .