Phariss v. State , 149 Tex. Crim. 489 ( 1946 )

A statement of the facts adduced upon the hearing of the motion for new trial is now before us.

Five of the jurors testified upon the hearing. The juror Akin testified that during the deliberations of the jury and before a verdict had been reached, the foreman of the jury, Deans, made the statement:

"I don't care much for Phariss or his character; several years ago he was hauling sand from my place and stole several loads from me and stole some other things out of my barn."

The other four jurors called to testify disclaimed having heard Deans make the statement. However, none of them was in position to say that the statement was not made.

Mr. Deans, the foreman, who was alleged to have made the statement was not called as a witness. His failure to testify was dismissed with the statement of State's counsel that they had been unable to "get Mr. Deans here for this hearing."

The testimony of the juror Akin stands undisputed and, under the facts adduced upon the trial of the case, constitutes the receipt by the jury, during deliberations, of other and additional testimony which, under the provisions of Sec. 7, Art. 753, C. C. P., requires a new trial. See Mitchell v. State, 36 Tex.Crim. R., 36 S.W. 456; Snow v. State,91 Tex. Crim. 1, 237 S.W. 563; Elder v. State, 118 Tex.Crim. R.,37 S.W.2d 1015; 31 Tex. Jur., New Trial — Criminal Cases, p. 237, Sec. 44, and supporting authorities cited under Notes 39 and 40 of Art. 753, Vernon's Code of Criminal Procedure.

Accordingly, appellant's motion for rehearing is granted, the affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.