# Stallworth v. State > Court of Criminal Appeals of Texas · February 14, 1945 · 148 Tex. Crim. 255 URL: https://www.frixlaw.com/law-library/cases/3902833 ## Case - **Full name:** Willie Stallworth v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** February 14, 1945 - **Citations:** 148 Tex. Crim. 255; 186 S.W.2d 252; 1945 Tex. Crim. App. LEXIS 686 - **Precedential status:** Published - **Opinion:** Addendum by Beauchamp - **Judges:** Krueger, Beauchamp - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3902833 ## Opinion text ON STATE’S MOTION FOR REHEARING. BEAUCHAMP, Judge. The State has filed a very forceful motion for rehearing in which the principal challenge is directed at the following expression found in the original opinion: “We are of the opinion that the jurors received other evidence which was used to the prejudice of the appellant.” It is then contended that the statements referred to in the original opinion as “other evidence” are not such because they bear no relation to the guilt or innocence of the party on trial and in no way modify any evidence introduced in the trial of the case either by the State or the defense. As observed by the motion, the misconduct consisted of a statement calling attention to a penalty of ten years which was assessed against another negro who stabbed a bus driver and was tried at the military post some time prior thereto. Also, the jurors were advised of a conviction and sentence imposed on a brother of one of the jurors by a court for a different character of crime. We believe that the State has not taken quite the correct viewpoint and that it has placed a more restricted definition of “other evidence” than is customary. We recall that it is error for a jury to discuss a former conviction of the defendant when that conviction is not properly before them as evidence in the case. Also, that it is error for the conviction of a codefendant to be put before the jury during their retirement by one of the jurors, especially when such illegal testimony “is calculated to affect the penalty assessed against defendant.” Branch’s Ann. Penal Code, Sections 570-1, and authorities there discussed. Such evidence does not relate to the guilt or innocence of the accused but the test seems to be whether or not such illegal testimony is calculated to affect the penalty assessed against the party on trial. We believe this to be the rule proper to consider in the case now before us. The authorities cited by the State in its motion will not modify this rule. Hendricks v. State, 13 S. W. 672 . It is further presented that the careful trial judge heard the facts on the motion for new trial and that his finding thereon was binding on this court. We have carefully reconsidered the record and it is our conclusion that his finding was one of law and not of fact, consequefitly the rule invoked would not apply. In its motion the State has further said that the case is very *262 much like Stockton v. State, 5 S. W. (2d) 996 , and argument presented apparently is based on a misconception of what that case did hold. It seems to be the view that any error made prior to the final ballot would be cured by it. Such misconception apparently is justified because this court, in the case of Grippon v. State, 44 S. W. (2d) 735 , fell into a similar error. However, Presiding Judge Hawkins in a concurring opinion in the case of Duncan v. State, 135 S. W. (2d) 111 , said: “The Grippon case was apparently based upon the opinion on rehearing in Stockton’s case. The Grippon case is expressly hereby overruled on the point under consideration and any intention by the Stockton case to uphold a verdict reached as in the present instance is disclaimed, and if subject to such construction it is also overruled on the point here involved.” ' The final ballot taken in the instant case might apparently be the free and uninfluenced choice of all twelve jurors but a proper understanding of the testimony given on the motion for new trial will not sustain that view. We think that the Stockton case does not aid the verdict in the instant case. The State next complains that we have permitted a juror to impeach his own verdict contrary to the rule. Mr. Branch has said, in Section 575: “It is only in extreme cases where the ends of justice and common fairness demand it that an exception to this rule is authorized.” In the same Section he says: “It is competent to prove the misconduct of the jury by a voluntary affidavit of a juror, and a verdict may, in like manner, be sustained by such affidavit.” He then proceeds to give illustrations of what are extreme cases, citing numerous decisions of this court. The study is very enlightening and unquestionably sustains the court in giving consideration to the testimony of the jurors in the instant case. Again it is presented that a great many jurors wanted more penalty than ten years and that a compromise was reached, by reason of the new evidence, whereby the penalty which was assessed was much less than the average time which the various jurors desired to give him. Surely the District Attorney does not mean to present this as a cure for the error pointed out. A conviction must be had by reason of the voluntary vote of all twelve jurors. The very able motion in this case has challenged the most careful consideration of the court but we remain of the opinion that the conclusion reached originally should be sustained. The State’s motion for rehearing is overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3902833. Public record. Not legal advice.