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: 359
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1875.] AUSTIN T. THE STATE. 359
Opinion of the Court.
he say he had any doubt of the guilt of the defendant from the
evidence adduced on the trial, but only that he was induced to
increase the punishment on account of what he had been told
by another juror.
The statement of the juror as found in his affidavit, is not
made by the statute a ground for a new trial, and it is only for
such causes as the statute prescribes that another trial will be
awarded. Where misconduct of the jury is cause for a new
trial, it is only so conditionally. It must be shown that the
defendant has not received a fair and impartial trial, by reason
of such misconduct, and the discretion of the court must be
exercised upon the facts in granting or refusing the motion on
that ground. The affidavit is clearly insufficient and without
merit as cause for a new trial.
(Jack le. The State, 26 Texas, 4; Johnson v. The State, 27
Texas, 769, and v. The State, decided at Austin, and
The objection to the charge of the court as being contrary
to the law and the evidence, and referred to as the fourth
ground of the motion for a new trial, has been considered and
disposed of in connection with the other objections before
Appellant, in his motion for a new trial, does not complain
of the verdict of the jury as being against the evidence, but
assigns it for error on a separate paper found in the record,
without the file mark of the clerk upon it, but signed by counsel
for appellant. It is further assigned as error, that the term
of the sentence as fixed by the jury was out of all proportion
to the offense, even supposing the evidence justified the finding
of murder in the second degree.
Murder in the second degree is punished by confinement in
the penitentiary for not less than five years, and with no other
limit as to time than the discretion of the jury, according to
the circumstances attending the homicide.
The injuries which resulted in the death of Edward Hughes
were inflicted by the defendant in a cruel manner, and were
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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/m1/367/: accessed October 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .