121 S.W. 1107 | Tex. Crim. App. | 1909
Lead Opinion
Appellant was convicted in the District Court of Gonzales County on a charge of assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a period of four years.
1. There is no statement of facts in the record. The motion for a new trial is confined to the single ground of the misconduct of the jury in that they arrived at their verdict by lot, the allegation being, in substance, that after the jury had arrived at the conclusion that appellant was guilty, that the penalty was determined in the following manner: Eight of the jurors were in favor of assessing defendant's punishment at five years in the penitentiary, and four of the jurors were in favor of assessing his punishment at two years in the penitentiary, and that they agreed in advance that each juror should state the number of years he was in favor of assessing, and that the total sum thus agreed on should be divided by twelve, and that the quotient should be the term assessed against appellant, and that the jury should be bound by the result thus to be ascertained; and that the aggregate number of years amounted to forty-eight years, and this sum divided by twelve made the verdict of four years. Evidence was heard on this motion, and two of the jurors, Willard and Griffin, by their testimony, in substance, affirmed the truth of the grounds contained in the motion. This allegation, however, was, in substance, disproved by the testimony of six others of the jury. The facts touching this matter *171
are authenticated in proper bill, which we have carefully examined. We held in the late case of Fox v. State,
2. In the brief filed herein by counsel for appellant complaint is made of the court's charge. This cannot avail appellant for two reasons: In the first place, in the absence of statement of facts we would not be authorized to assume that the charge was hurtful to appellant, and, again, no complaint of the court's charge was made in motion for a new trial.
As presented, there is no error for which we would be authorized to reverse the judgment of conviction and it is accordingly affirmed.
Affirmed.
Brooks, Judge, absent.
Addendum
Counsel for appellant calls our attention to a very patent and obvious error of fact in the opinion of the court heretofore rendered. It is therein stated that there was no statement of facts contained in the record. This statement is wholly inaccurate. Excuses for oversight in so stating are unnecessary, and considering the care we should exercise in respect to such a matter ought to be and doubtless would be unavailing. However, this misstatement of fact in no way affects the accuracy and correctness of the opinion. There was no complaint of the court's charge made in motion for a new trial, and under the terms of article 723 of our Code of Criminal Procedure, and a long line of decisions in this State, we are not authorized to consider matters raised on the appeal.
The motion for rehearing is accordingly overruled.
Overruled. *172
