Ellis v. State , 33 Tex. Crim. 508 ( 1894 )

Appellant was convicted of rape, and his punishment was assessed at five years. In his motion for a new trial appellant says, that after the 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 the voluntary affidavit of said Cude, that on the first ballot the jury stood ten for acquittal and two for conviction. That after discussing the character of defendant the jury stood six and six. That thereupon he (the juror) asked whether it would be right to state what he personally knew of defendant's character; and being assured there was nothing wrong in stating it, he informed the jury that three years before defendant went into the bedroom of one of his neighbors, where his wife was, and he (the juror) heard her husband tell defendant if he did not leave the county he would kill him; that defendant left the neighborhood. After this statement, with further discussion, the 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 the seventh subdivision of article 777 of the Code of Criminal Procedure, defining the grounds upon which a new trial should be granted.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.