Ellis v. State ( 1894 )

SIMKINS, Judge.

Appellant was convicted of rape, and bis punishment was assessed at five years. In bis motion for a new trial appellant says, that after tbe jury had retired to consider of their verdict they received other testimony from one "W. T. Cude, a juror, which operated injuriously to appellant’s rights.

It appears by tbe voluntary affidavit of said Cude, that on tbe first ballot tbe jury stood ten for acquittal and two for conviction. That after discussing the character of defendant tbe jury stood six and six. That thereupon be (tbe juror) asked whether it would be right to state what be personally knew of defendant’s character; and being assured there was nothing wrong in stating it, be informed tbe jury that three years before defendant went into tbe bedroom of one of bis neighbors, where bis wife was, and be (tbe juror) beard her husband tell defendant if be did not leave tbe county be would kill him; that defendant left tbe neighborhood. After this statement, with further discussion, tbe whole twelve voted for conviction. This affidavit is in no way traversed or denied. It needs no comment to show its importance and prejudicial tendency, and therefore comes clearly within tbe seventh subdivision of article 777 of tbe Code of Criminal Procedure, defining tbe grounds upon which a new trial should be granted.

Tbe judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.