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MALCOLM SYLVESTER MCDANIEL v. STATE (12/18/57)

decided: December 18, 1957.

MALCOLM SYLVESTER MCDANIEL
v.
STATE



Driving While Intoxicated. Appeal from County Criminal Court of Tarrant County; penalty, 10 days in jail and a fine of $75.00. Hon. W. H. Tolbert, Judge Presiding.

COUNSEL

Scott L. Daly, Fort Worth, for appellant.

Howard M. Fender, Criminal District Attorney, Bill Atkins and Albert F. Fick, Jr., Assistants Criminal District Attorney, Fort Worth, and Leon Douglas, State's Attorney, Austin, for the state.

Dice, Judge.

Author: Dice

[ 165 Tex. Crim. Page 403]

    The conviction is for driving while intoxicated; the punishment, 10 days in jail and a fine of $75.00. In view of our disposition of the case a recitation of the facts is not deemed necessary other than to observe that on the date alleged the appellant, while driving his automobile on a public highway, collided with another automobile approaching from the opposite direction. Witnesses, called by the state, who observed the appellant at the scene after the collision testified relative to his appearance and expressed their opinion that he was drunk.

As a witness in his own behalf, appellant testified that on the day in question he had been collecting checks for his employer and that he had not consumed any intoxicating beverages during the day.

Appellant sought a new trial because of certain alleged jury misconduct.

In his motion, which was supported by the affidavit of one of the jurors, appellant alleged that during the jury's deliberation some of the jurors argued that he should have produced witnesses who had seen him immediately prior to his arrest and would have testified that he was not drinking and that in an effort to persuade the other jurors to vote for a conviction some of the jurors repeated several times, as a matter of law and fact, that if the jury did vote for a conviction the appellant would be entitled to and able to obtain a new trial and upon such new trial would have an opportunity to bring in the other witnesses which he should have produced to prove his innocence.

Upon the hearing of the motion, five of the jurors testified; the jurors Newsom and Moore being called by the appellant and the jurors Gilbert, Jackson and Lenihan being called by the state.

The testimony shows that four ballots were taken by the jury in arriving at their verdict; the first two ballots resulting in a vote of four to two for acquital, the third ballot being four to two for conviction, and on the fourth ballot a unanimous vote for conviction.

Mrs. Newsom testified that during the jury's ...


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