33 Tex. 266 | Tex. | 1870
We have carefully examined the record in this case, and given due attention to the argument and brief of appellant’s counsel, as well as those of the Attorney General.
The points most insisted on by counsel for appellant are, first, that R. R. Farish, the foreman of the jury that tried appellant, was not a legally qualified juror. Second—That several of the persons were of the regular jury of the term, and were therefore not legally qualified to sit upon the jury. Third—That the verdict was contrary to law and evidence.
The appellant’s counsel offered in support of their motion for a new trial to prove by the juror that he was neither a householder in the county nor a freeholder in the State.
In Johnson v. The State, 27 Tex. R., 758, {he court say: “No case has yet occurred in this State wherein the courts have tolerated affidavits of jurors made to impeach their verdict; if ever admissib'e, they can only be allowed in an extreme case and under an imperative necessity for the accomplishment of justice.” (See also Shaw v. The State, 27 Tex. R., 750, and numerous antecedent cases in the Texas Reports.) There is a case excepted by statute, where the jurors misbehave in any manner in their retirement.
We see no force in the objection that some of the jurors were regular jurors, and know of no rule or principle of law which would forbid their being summoned on the special venire, should the court see proper to excuse them from the regular pannel. This is even a matter of necessity in some of the frontier counties wffiere it is difficult to obtain the requisite number of qualified jurors.
Nothing improper appears m the charge of the court, nor is it even objected to. The verdict is in strict accordance with the law, if the facts are sufficient to support it. The evidence is very conflicting ; no two of the witnesses agree in their statements as to the most material facts.
The surgeon, whose evidence has been liberally commented on, is not consistent with himself. On his examination-in-chief he says deceased died from the wound; on cl’oss-examination he states that he died from inflammation caused by the suture, which had been unskilfully performed ; that the wound was of that class not generally considered mortal. He had treated seven such
The evidence was so conflicting on the tidal that we would not undertake to say that the jury have given it a wrong solution. The witnesses were, several of them, of the crowd described by one of their own number—as a drinking crowd, “ all talking fighting talk,” urging on a fight.
The only palpable injustice done, so far as we can see, is that all those who were thus particeps crimiids in this transaction, are not in a like position with Brennan. There is 'certainly a possibility that he may have been wrongly convicted, but it rests entirely upon the evidence whether it be so or not, and of this the jury were the best judges. The judgment of the court below is affirmed and cause remanded.
Affirmed.
McLemore Sp Hume, moved for a rehearing. They discussed the evidence and other questions in the case, and argued the points decided at some length, as. follows: It is submitted that the reasoning of the court, on the hypothesis that the introduction of Farish to show his disqualification, would result m permitting jurors to impeach their verdict, is erroneous. Webster defines the meaning of :£ impeach ” thus: “ To accuse; to charge with a crime or misdemeanor; to charge with impropriety; to call in question, as to impeach one’s motives or conduct.” Certainly Farish was not called to do either of these things, when it was simply proposed to show by him the existence of a fact in pais out of the record, and with no possible relevancy to his motives or conduct in the case, and having no bearing whatever upon the correctness
The court very properly ruled the ground not well taken, and stated that if there had been a false statement, and the- fact was unknown before verdict, the -point should have been saved by bill of exceptions, setting forth the evidence and what occurred on the trial. But surely this case is nojfc authority in the most remote degree upon the point under discussion here. In Little v. Birdwell, cited by the Attorney General, a new trial was sought and refused, because a paper which had been- read in evidence was by mistake withheld from the jury on their retirement, and had it been in their hands a different verdict would have been rendered. This is supported by affidavits of jurors. This court says, in that case, that it is an attempt by jurors to impeach their verdict, and cannot be allowed. (21 Tex., 612.)
Of a like character is the case of Kilgore v. Jordan, 17 Texas ■ Reports, 341. There a motion was made for new trial, on the ground, among others, that the jury misapprehended the law, supported by the affidavits of two of the jurors, to the effect that
Third—If it be considered that these arguments consist with truth, then the question may recur, is not the statement of the judge below that Farish answered affirmatively to the questions of qualification, conclusive of the fact of his qualification ? We respectfully say not, and that he should have been allowed to make his explanation and deny the facj; on the motion for new. trial. The law requires a juror to possess the qualification. Now,' does the affirmative reply to the question make an untruth a truth ? If it is a fact that he is not qualified, does his statement that he is destroy that fact ? And if he is disqualified, is not the prisoner entitled to the sequence of that disqualification whenever established, unless he has waived it ? Grant that the juror did answer the question as recited in the remarks of the judge below, could it not have resulted from an indistinct hearing or understanding of it ? And if such .was the case, ought not the court to have permitted its proof; and if it was not the case, how could the cause of justice have been imperilled by allowing it to appear a second time ?
Fourth—Assuming then that Farish was not a freeholder or householder, was he a proper juror-? On this point, we can only beg the court’s attention to the brief already filed in the canse, and suggest these additional considerations: The Constitution gives the citizen the right of jury trial. The law defines the qualification of jurors. One of its requirements is that he he a freeholder or householder in the State or county. Article 2492, Pas
Every member of the court has given due consideration to the motion for a re-hearing in this case, and we admire the fidelity and zeal of counsel for his client in exhausting every legal and logical argument which could be urged in support of his motion. It is admitted that some English cases and some in one or two of the New England States have gone nearly to the point claimed by counsel in this case; but we are still of opinion, that the current and'controlling authorities, including tho3e of our own State, are overwhelmingly against it. In England, Ireland and Scotland, where about ten thousand persons out of near forty millions own the whole domain, an estate in land has always given great dignity as well as social and political, importance to the owner. And in New England, a social as well as political distinction has been kept up between the landed and landless. Several of these States have maintained a freehold qualification of suffrage. But in a country where lands are still so cheap that it almost makes a man poor to own them, a man. may be “a man for a’ that” and own no land. We have no doubt that Brennan was, tried by his peers, to say the least; and though our law keeps up the freehold or household qualification for jurors, yet under that same law, a man accused of felony may waive almost anything, but trial by jury. ’ And suppose it be admitted that one of the. jurors .was not a freeholder or a householder, did that circumstance, in itself destroy the jury in a legal sense? We clearly think nQ.t,
“ The provisions of this code shall be liberally construed, so as to attain the objects intended by the Legislature, the prevention, suppression and punishment of crime.” Here the rule of the .common-law is reversed, and though this court will not go beyond the express letter and meaning of the law knowingly, yet we must meet its requirements, or we would make ourselves most unworthy public servants; and we trust that this will not be considered a spasm of public virtue. It should be regarded as the very highest duty to the State, the honest performance of which is incumbent not only upon this court, but on every judicial fune.tionary in the State.
We feel it due to the' learned counsel for the appellant to say that we commend his industry and untiring zeal for his client; but the motion must he denied.
Rehearing refused. "