Opinion
No. 24920.
October 25, 1950.
Appeal from the District Court of Brewster County, Alan R. Fraser, J.
Mae M. Ament, J. C. Epperson, Alpine, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
The appeal is from a conviction for driving a motor vehicle while intoxicated, with a penalty of two years in the state penitentiary. The evidence will sustain the conviction.
Bill of Exception No. 1 complains of jury misconduct, after they retired to deliberate upon their verdict, in that they discussed and considered other indictments and complaints against this defendant and other convictions of this defendant in arriving at the punishment to be inflicted upon him. This was contrary to the instruction given by the court. Such evidence was admitted as going to the weight of the testimony of appellant in his own behalf. On motion for new trial it was shown that the jury had considered former convictions for other offenses in arriving at their verdict and assessing the punishment at two years in the penitentiary.
The State's Attorney in his brief, says: 'It appears that the bill is well founded, the testimony seeming to show that the jury immediately found the appellant guilty and when they went to assess the punishment they discussed and considered the testimony introduced about prior convictions not alleged in the indictment.' This is tantamount to confession of error on the part of the State, which we find to be well founded.
Because of misconduct of the jury the judgment of the trial court is reversed and the cause is remanded.