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: 358
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358 AUSTIN v. THE STATE. [Term of
Opinion of the Court.
the jury had retired to consider of their verdict, another juror,
whose name he, Hopson, did not recollect, but thought it was
Frank Kountz, told him that he, Kountz, had heard that the
defendant Austin had killed another man up the country, and
Hughes made two he had killed, and further stated to him
that the defendant had stabbed another in Houston. This
juror further stated, that, by reason of this information, he was
prejudiced against the defendant, and influenced in his verdict,
and induced to fix the punishment of the defendant at a
greater number of years in the penitentiary than he would have
done had he not heard the statements.
In support of this ground, we are referred to Article 3137,
Paschal's Digest, and especially to the 7th and 8th subdivisions
of that article, which, as appellant contends, entitled him
to a new trial, and are as follows: " 7tll. Where the jury, after
" having retired to deliberate upon a case, have received other
" testimony, or where a juror has conversed with any person in
; regard to the case. 8th. Where, from the misconduct of the
" jury, the court is of opinion that the defendant has not re"
ceived a fair and impartial trial, and it shall be competent
' to prove such misconduct by the voluntary affidavit of a
These provisions were intended to secure to the accused an
open, public trial before a jury, where he could be heard by
himself and counsel, and be confronted with the witnesses
against him, but it cannot be supposed that the deliberations
of the jurors among themselves, after they retire to consider
of their verdict, should be cause for a new trial.
This juror seems to have very imperfect views of what was
his duty, when he says he was influenced in his action, as a
juror, by what a fellow-juror told him the defendant had done,
j e had heard about the defendant having no relation
to the case on trial. It was not evidence upon which he
could find his verdict, nor does it appear that the statement
was made to him for the purpose of influencing his action as a
juror. He does not recollect the name of the juror, nor does
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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/m1/366/: accessed July 21, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .