McKissick v. State

White, Presiding Judge.

It is shown by the affidavit of a juryman who tried the case that after the jury had retired to consider of their finding one of the jurors (the foreman) stated to the jury that he knew one of defendant’s witnesses who testified in the case, and that the said defendant’s witness’s character was bad and that he was unworthy of belief, and affiant stated that his verdict was materially affected thereby. This witness, who was thus being impeached by the foreman of the jury, was one of if not the most important witness for defendant.

One of the grounds expressly enumerated in the statute as being sufficient to entitle a defendant to a new trial is, “ where the jury, after having retired to deliberate upon a case, have received other testimony,” etc. (Code Crim. Proc., art. 777, sub div. 7.)

With regard to the impeachment of a witness the same rule obtains as in all other cases; the defendant should be confronted with the impeaching witnesses, and be afforded an opportunity to cross examine them. When the right is not accorded him, the law presumes that he is injured, and will not permit a verdict to stand where such testimony has been used against him in the jury room, and where the circumstances have not been explained, nor attempted to be explained, by counter affidavits supporting the integrity of the verdict; which was the case in this instance.

The same irregularity as presented in this record was held reversible error in the case of Wharton v. The State, 46 Texas, 2, and in Anschicks v. The State, 6 Texas Court of Appeals, 624. The court should have sustained the motion for a new trial upon the ground of the motion, and because of error in overruling said motion, the judgment is reversed and the cause remanded.

Reversed and remanded.