Green v. State , 116 Tex. Crim. 203 ( 1930 )

Possession of intoxicating liquor for the purpose of sale is the offense; penalty assessed at confinement in the penitentiary for one year.

The State's evidence conclusively shows that the appellant possessed a quantity of beer which, when analyzed, was shown to contain something over four per cent of alcohol by volume. No testimony was introduced by the appellant.

No complaint of the court's ruling is brought up for review save that which complains of the refusal to grant a new trial. The position taken by the appellant is that subdivision 5 of Article 753, C. C. P., was transgressed in that after the case was submitted to them, the members of the jury learned the age of the appellant. Several members of the jury testified at the hearing. It appears that the jury, soon after it retired, concluded that the appellant was guilty and agreed on his conviction. In the discussion of the length of his sentence, an inquiry arose as to whether or not a suspended sentence was available. It was thought by some of the jurors that if the sentence could be suspended, a long term should be given him; but if it could not be suspended, then his sentence should be short. The jury understood that the sentence could not be suspended if the appellant was more than twenty-five years of age. The suspended sentence was not mentioned in the court's charge. By inquiry of the court the jurors were informed that the matter was not before them. From the evidence it appears that the jury, during its discussion, learned that the appellant was twenty-four years of age. Counsel stated in argument that the information came from the deputy sheriff in charge of the jury. It is clearly implied from the court's judgment in overruling the motion for new trial and from the evidence before it that the matter of which complaint is made could not and did not harm the accused. The contention that from the fact that the appellant made no application for a suspended sentence, the jury inferred that he had been in some previous trouble is not impressive, as the proof of guilt was conclusive, the lowest penalty was assessed, and the jury had agreed upon a conviction before learning of the age of the accused.

The declarations of the jurors that they were influenced by the occurrence taking place in the jury-room are not regarded as of any weight on appeal. See McCoy v. State,21 S.W.2d 516.

The judgment is affirmed.

Affirmed.

HAWKINS, J., absent.

ON MOTION FOR REHEARING.