Middleton v. State , 147 Tex. Crim. 146 ( 1944 )

Appellant was convicted of murder without malice, and assessed a term of two years in the State prison.

There is but one bill of exceptions in the record and that relates to the claimed misconduct of the jury. It is rather voluminous, consisting of 73 pages in question and answer form, such certified as necessary by the trial court. The statement of facts in the trial of the main case consists of but 43 pages, thus evidencing the fact that the trial of the jury's misconduct took up more of the court's time than the trial of appellant.

The facts are claimed to be insufficient to establish appellant's guilt, and it is alleged that same showed a killing in self-defense only.

Appellant and several other negroes had passed the home of the deceased's father, who was a Mexican. A dog, belonging to the father, had barked at appellant, who was very nervous, and some conversation ensued relative to the dog's conduct. Appellant and his companions then went on down to a pool or creek near the home of deceased's father and were preparing to go in swimming. The deceased, Nino Sandejos, accosted the negroes, and probably some rather strong language was used by both parties. The conversation being over, these negroes went in swimming at such place, which was near where the deceased and his father lived. Finally the deceased went to the nearby car of a friend and took a 22 rifle therefrom, and came up to where appellant was standing, and pointed the gun at appellant's stomach. A witness stated, and the jury evidently believed, that appellant at such time had a pistol in his hands hidden behind his body. Eventually appellant claimed to have grasped the gun and same went off, making a small wound upon his little finger; he then shot the deceased in the neck, and took the 22 rifle and threw it in the nearby creek. The deceased was wounded in a dangerous place near the jugular vein, and he was taken to a hospital where, after examination, the doctor refused to operate and extract the bullet, but directed that he be taken home and left to await developments. The wife of deceased was dissatisfied with such treatment and put him in an automobile and carried him to Brownwood, some miles distant from deceased's home. The doctors there proceeded to operate immediately, and the deceased died soon on the operating table.

The facts upon which the jury could predicate the verdict rendered are present in the record, and we do not think this court would be justified in setting this verdict aside on account of such insufficiency.

The allegations relative to alleged misconduct of the jury are to some extent supported by the affidavit of one of the jurors, but it is noticed that pertinent portions of such affidavit were not supported by the testimony of such jurors; in fact some of the statements in the affidavit were denied by the juror as having been made by him. Some of the statements complained of as having been made in the jury room were but argumentative matters, and made well within the province of the jury, such as that if appellant was sent down to the penitentiary it might make a better man out of him. A portion of the object of punishment provided for by the statute is "to reform the offender." Art. 2, P. C.

Again it is complained that a certain juror was prejudiced against the law of suspended sentences, and that he had so expressed himself in the jury room, notwithstanding the fact that he had expressed himself as being of an opposite view on his voir dire examination. According to the testimony adduced on the motion for a new trial, we are inclined to the belief that what the juror said was that he was opposed to the granting of a suspended sentence to this appellant whom he thought had committed a murder; that he did not believe in granting a suspended sentence on account of the facts produced in this case; that the juror himself would rather run than shoot a man.

After a patient reading of this voluminous bill, as certified to by the trial court, we are of the opinion that there was no erroneous conduct upon the part of the jury to such an extent that would justify this court in reversing this case. Without a further attempt to here review other claimed acts of misconduct upon the part of the jury, suffice it to say that we are of the opinion that such alleged acts as would have constituted misconduct upon the part of the jury are not sustained by the evidence.

Finding no error in the record, the judgment is affirmed.

ON MOTION FOR REHEARING.