Neaves v. State , 112 Tex. Crim. 293 ( 1929 )

Appellant forcibly presents and argues his motion, insisting that when one or two jurors assert that certain statements were made in the jury room after retirement, which if made might have affected the penalty inflicted, a new trial should be granted, notwithstanding the other ten jurors appear and testify in effect that such statements were not made. We regret that we can not uphold appellant's contention. Same is not the rule, and plainly ought not to be. While the statute provides that a new trial in a felony case shall be granted when the jury receive other testimony after they have retired to deliberate on the case, still this can only apply and be given effect in a given case when, upon fair judgment of the testimony heard pro and con upon the presentation of the motion, the trial court is warranted in determining that such testimony so heard shows "other testimony" to have been received by the jury. The decision of this issue rests, as others do and must, upon testimony; and if the weight of same be against the conclusion that other testimony was received, it would be as much the duty of the trial court to decline to grant a new trial, as it would be to grant it if the weight of the testimony supported the contention of the accused. Kelly v. State, 95 Tex.Crim. Rep.; Rosamond v. State,97 Tex. Crim. 639. In the instant case upon hearing of appellant's motion for new trial, based on the proposition that some one had made in the jury room the statement set up, the twelve jurors testified and stood eleven to one, or at most, ten to two, against the proposition that such statement had been made. The court's decision holding with the majority of the witnesses, was no abuse of his discretion, and we must uphold his action.

The motion for rehearing will be overruled.

Overruled.