Calyon v. StateCalyon v. State
- Reporters:
- , ,
- Before:
- Davidson
Where, upon trial of assault with intent to rape, the evidence, although conflicting, sustained the conviction, there was no reversible error. Following White v. State, 60 Texas Crim. Rep., 559, and other cases.
2.—Same—Functions of the Jury.
The rule is that where the evidence is sufficient to sustain the verdict, although there be contradictions in the testimony of the State‘s witnesses, this court can not legally take the place of the jury, and the only question is whether there is sufficient evidence to sustain the conviction. Following Kearse v. State, 68 Texas Crim. Rep., 633.
3.—Same—Misconduct of Jury—Allusion to Defendant‘s Failure to Testify—Character Witnesses—Affidavit.
Where the purported affidavit was made simply and solely on the affiant‘s best knowledge, information, and belief to his amended motion alleging misconduct of the jury in alluding to defendant‘s failure to testify and to place character witnesses on the witness stand, the same was insufficient, and there was no error in overruling same. Following Hicks v. State, 171 S. W. Rep., 755. Davidson, Judge, dissenting.
4.—Same—Rule Stated—Pleading—Proof—Practice.
Where the motion for new trial attacks the verdict of the jury on any matter outside of the record itself, defendant must as a matter of pleading supported by his own affidavit or the affidavit of someone else specifically show the truth of the grounds of the attack, and an affidavit that affiant is informed, believes, etc., is insufficient where it is not shown nor attempted to be shown from whom he received such information, etc. Following Morrison v. State, 39 Texas Crim. Rep., 519, and other cases.
5.—Same—Oath of Jurors—Charge of Court—Practice—Misconduct of Jury.
Where, upon trial of assault to rape, the court properly administered the oath to the jurors as provided under
6.—Same—Charge of Court—Definition of Rape.
Where the trial judge in his definition of rape included threats, etc., but when submitting the case to the jury for a finding confined himself to the question of force only as charged in the indictment, there was no reversible error. Following Railsback v. State, 53 Texas Crim. Rep., 542, and other cases.
Where, upon trial of assault with intent to rape, the court applied the law to the facts in the case and submitted all of defendant‘s special charges except the one which required a peremptory acquittal and those embraced in the court‘s charge, general objections to such charge that he did not do so are insufficient, and there was no reversible error.
8.—Same—Evidence—Appearance and Condition of Prosecutrix.
Upon trial of assault with intent to rape, there was no error in permitting testimony as to the condition of prosecutrix and her appearance when she reached home about two hours after the assault upon her. Following Conger v. State, 63 Texas Crim. Rep., 328, and other cases; besides, this evidence was excluded from the jury.
9.—Same—Facts Stated in Opinion.
See comments in additional opinion by majority of the court with reference to facts stated in the opinion which are in consonance with the record and sufficient to sustain the conviction. Davidson, Judge, dissenting.
10.—Same—Misconduct of Jury—Affidavit—Other Testimony.
While the trial court under
11.—Same—Cases Discussed.
See additional opinion and dissenting opinion discussing the decisions in the cases of Barber v. State, 35 Texas Crim. Rep., 70, and Hampton v. State, 63 Texas Crim. Rep., 100.
Appeal from the District Court of Galveston. Tried below before the Hon. Robert G. Street.
Appeal from a conviction of assault with intent to rape; penalty, four years imprisonment in the penitentiary.
The opinion states the case.
King & Hughes and R. L. Pillow, Jr., for appellant.—On question of the court‘s charge on threats: Burney v. State, 21 Texas Crim. App., 565; Taylor v. State, 22 id., 529; Milton v. State, 23 id., 204; Cox v. State, 44 S. W. Rep., 157; Robertson v. State, 17 S. W. Rep., 1068; Cotton v State, 52 Texas Crim. Rep., 55, 105 S. W. Rep., 185; Shield v. State, 23 S. W. Rep., 893; Steinkie v. State, 25 S. W. Rep., 287; Matthew v. State, 31 S. W. Rep., 381; Hancock v. State, 47 S. W. Rep., 4; Graybill v. State, 53 S. W. Rep., 851; Ellenburg v. State, 35 S. W. Rep., 989; Sirmons v. State, 72 S. W. Rep., 395.
On question of insufficiency of the evidence: Cromeans v. State, 59 Texas Crim. Rep.; 611, 129 S. W. Rep., 1129; Blair v. State, 60 Texas Crim. Rep., 363, 132 S. W. Rep., 358; Alexander v. State, 58 Texas Crim. Rep., 621, 127 S. W. Rep., 189; Thompson v. State, 43 Texas, 583; Pefferling v. State, 40 id., 487; Eiley v. State, 55 Texas Crim. Rep., 1; Collins v. State, 52 id., 455.
On question of court‘s charge on threats: Steagald v. State, 22 Texas Crim. App., 465.
On question of insufficient showing of misconduct of jury: Kannmacher v. State, 51 Texas Crim. Rep., 118, 101 S. W. Rep., 237; Tyler v. State, 90 S. W. Rep., 33; Low v. State, 71 Texas Crim. Rep., 179, 160 S. W. Rep., 98; Jack v. State, 20 Texas Crim. App., 656.
PRENDERGAST, Presiding Judge.—Appellant was convicted for an assault with intent to rape Leta Tinnin on July 4, 1914, and his punishment assessed at four years in the penitentiary.
1. Appellant vigorously contends that the evidence was insufficient to sustain the conviction. It is, therefore, proper to state some of the testimony tending to sustain the conviction. What this court said in Kearse v. State, 68 Texas Crim. Rep., 633, 151 S. W. Rep., 828, is applicable to this case. It was there said:
“There is hardly any contested case that comes to this court but what there are contradictions in the testimony, and frequently a principal witness may contradict himself in material matters. In such cases, when it is contended that the evidence is insufficient to sustain the verdict, this court can not legally take the place of the jury, and determine whether or not it will believe any witness or witnesses, and from all of the testimony, as put down on paper and sent to this court, it would have found a different verdict from that of the jury, and, if so, reverse the case on that account. The only question this court can determine is whether there is sufficient evidence, if believed by the jury, to sustain the conviction. This court passes upon that question as a question of law which is all it can legally do under such circumstances. Our law expressly provides that the jury in all cases are the exclusive judges of the facts proved and of the weight to be given to the testimony. This court therefore can not take that question from the jury without usurping authority that was never given or intended to be given to it. The jury in a felony case is made of twelve fair, disinterested, impartial, unprejudiced, unbiased, and competent jurors selected from different portions of the county, each one of whom hears all the witnesses, looks them in the face when testifying, observes their manner and the method of their examination by the respective attorneys, then hears the argument of the attorneys for each side, one side undertaking to break down the testimony of the witness and calling attention to every contradiction by others of him, the other explaining such matters, and seeking to sustain such witness, then hear and take with them in their retirement the charge of the court. Then the twelve men discuss and consider in private between themselves all such matters, and, after weighing it all and all the arguments against it and in support of it, come to the conclusion that the testimony of a certain witness, or witnesses, although contradicted and although there are contradictions in the testimony of such
witness, that it is true and they believe it. The jury is made up of men of different ages, from young to comparatively old men, and they pursue different occupations and businesses. With all these surroundings they are much more competent to arrive at the truth than are the judges of this court, who must look solely to the testimony as written down on paper. It can not portray the manner, the looks, and the deportment of the witness, nor the manner of his examination and cross-examination by the attorneys. Besides this, the presiding judge hears and sees and observes all that the jury does in the trial of the case and he then sustains the verdict of the jury. Therefore, when the evidence taken in its favorable light sustains the verdict, this court can not legally set it aside.”
The statement of facts contains fifty-four typewritten pages. We have read it, more than once, and carefully studied it. The testimony establishes some of the facts without controversy. We will here state some of these.
Beta Tinnin, the alleged assaulted girl, was just past fifteen years of age. She lived with her parents in Alvin. She had never kept company with any boys prior to this and her parents would not permit her to accept company or go out alone. Most all of the witnesses, in speaking of her, designated her as a little girl. The appellant seems to have been a grown man, though his age is not stated. The little girl, Beta, had never seen him before the day of the alleged assault and he was not introduced to her on that occasion.
On said date there was a political picnic in Galveston County, on the mainland, some twelve miles from Alvin. On the morning of that day said little girl, together with a young daughter of Mr. Romine, the constable, with John Sue, in a buggy, went to said picnic. There was a large crowd of men, women and children at the picnic. They had various classes of amusements on the picnic grounds that day. The extent of the picnic grounds is not given, though there are some indications that it was on about a 100-acre tract of land and at a creek. At one locality the soldiers were racing their horses and jumping them. More or less crowd was watching that amusement. At another location they had political speakers and more or less people were giving their attention to that. At another place they had a dance stand and a dance was going on. A considerable number were giving their attention to that amusement. And at another locality was a baseball game, which, it seems, always attracts more or less attendance. There may have been other attractions also on the ground. Up and down the creek there was more or less timber and some undergrowth and brush. This extended from the creek to some seventy-five yards from it. The creek had a kind of double, or treble, bank or benches to it. A bank running up from the water a few feet high and extending back perhaps some eight or ten feet. Then another bank or rise several feet high and extending to another bench; then, it seems, still another to reach the apparently level ground.
Along about 4 or 5 o‘clock in the evening the little girl, Leta, her com-
We now give some of her (Leta‘s) testimony. She said: “He walked up to me and asked me to dance with him. I told him I couldn‘t dance. He says, ‘Will you go in bathing with me?’ I says, ‘There are no girls in bathing; I am not going in when there are no other girls in.’ He says, ‘There are, too, and come with me and I will show you.’ I sort of did not want to go at first, and then I says, ‘I will go with you, but I know they are not there.’ The girls were not in bathing. We walked down that way a little ways and he says, ‘Stop,’ and I stopped, and he put his arms around me and says, ‘You are the sweetest girl I ever saw,’ and tried to get me to kiss him. I would not do it. I started to cry and told him to turn me loose, and he says he would not do it until I kissed him. He tripped me and then I fell, and he kept trying to get me to kiss him. I would not do it. I said, ‘You let me up, I got to go,’ and he says, ‘You kiss me.’ I says, ‘I am not going to do it.’ I started calling for help and nobody didn‘t come to me, and he kept trying to get me to kiss him and I wouldn‘t do it. He told me to take hold of his root. At that time, when he told me to do that, he had his hand over my mouth, and his mouth over my mouth part of the time, and told me to hush, and I would holler, and he would keep trying to get me to, and I wouldn‘t do it. He says, ‘Take hold of my root,’ and tried to feel my breast. I don‘t remember the exact words he said then, if anything was said. He tried to get me to let him feel of my breast and I told him to quit. At that time, when he asked me that, I was on the ground; he had tripped me. We was both on the ground. He was on the ground. I was trying to get on my side, as near as I could and he would get right on top of me. He would get right on top of me. At that time I did see a portion of his private person. He just stuck his hand down under me and commenced undoing his pants. At that time he was lying down. After he said to do this and when he exposed his person, as I testified, well, he was trying to get me to—tried to put his hand over my mouth, and he was putting his mouth in mine, and I would bite him, and one time he put his mouth in mine and I just reached up and pulled his hair, and I just lay over on the ground; and act sort of like he was crazy, and he was not. He would try to get me to hush hollering. He told me to hush, and I said I would not, and I said, ‘Let me up.’ I said, ‘Let me up or I will holler.’ He says, ‘If you holler and tell on me, I will kill you.’ When I fell on the ground and went down on the ground and he tripped me, the condition of my clothes as to whether or not they were down on my body, they were down. He pulled my dress up as far as he could get it, and had his hand that way. He put his hand under my slips. My slips, that was the last underclothing next to my skin. I was trying to get someone to come after me; I hollered, ‘Help.’ I hollered it loud. I hollered for help all the time. Well, after that, one time I started to get up and he says, ‘Don‘t you run,’ and grabbed me right here at my dress, and I stopped to
This little girl, Leta, just past fifteen years of age, was subjected to a very lengthy, searching and exhaustive cross-examination by one of appellant‘s able attorneys, who had had extensive experience as an attorney in all character of cases. It is not strange that she may have under such circumstances, given testimony contradictory of herself or perhaps in some particulars weaken, in others strengthen her direct testimony. We do not propose to give in detail her testimony upon cross-examination, but we will give excerpts from it.
She described the various things about the picnic grounds the best she could. Among other things, stating in substance, that they entered the picnic grounds at a gate from the Dickerson road; that the dance pavilion was about a half mile or less from this gate; that trees extended up and down the bank of the creek and for some fifty to one hundred steps from the creek, all along. The dance pavilion was on the outer edge of this grove of trees from the creek. “Coming from the dance pavilion when I and the young man started away, we went down the creek toward the Dickinson road; the pine trees are pretty thick along there. . . . Coming from the pavilion, where I say I met this defendant, down to the creek toward the shell road, I and the defendant walked down the little path that led toward the pavilion down to the creek, and to the brow of the hill on the second bank, and we took that little path and walked down skirting the creek. . . . He did not say which way he wanted me to go. He walked off then towards the road down the creek to the bank of the creek and I went with him. I remember that coming up the creek the other way the brush comes down close to where the dancing was. There is brush the other way; where we went it was pretty thick; we were in a trail. . . . I did not notice anything when the defendant came to talk to me, as to his acting strangely in any way. From the time he asked me to go down to the creek, he didn‘t leave me. And as to his telling me there were some
In the cross-examination of this little girl he had her to state that the time appellant was engaged in this assault on her was longer than five or ten minutes, was longer than twenty minutes and she said perhaps as long as thirty minutes, or still longer. Appellant‘s witness A. G. Fallette swore that he was walking the horses back and forth on the edge of the timber opposite the dance hall, back the other way towards the shell road; that he noticed appellant and the little girl Leta going down towards where the assault is alleged to have occurred; that they had not passed him more than five minutes when he heard loud talking and some cursing down in that direction; (this was doubtless John Sue); that a little boy came along and he asked him to hold the horses and he then saw someone (Sue) after appellant; that a large lady (Mrs. Kavalder) came up and talked pretty rash to him; she threatened to hit him with her parasol. “From the time I saw this couple go down towards the creek before I saw this incident happen (Mrs. Kavalder‘s attempted assault upon him there) it was not more than five or six minutes; I am satisfied not more than five or six minutes.”
The little girl Leta further said she was screaming all the time. “When he first told me to put my hand on his person, that was after I fell on the ground. After laying there a long time begging me to kiss him, and holding his hand on my mouth, he took my hand and tried to make me put my hand on his person, and I would not do it. He had unbuttoned his clothes; that was while on the ground. He did not take both hands to unbutton his clothes. He held me with one hand and unbuttoned his clothes with the other, and I didn‘t get away from him then, not exactly then. And I would not put my hand on his person. He had his hand on his person and asked me to do so. Then he let loose of his person and asked me to take hold of it; I don‘t know exactly how long he carried on that way, begging me to put my hands on his person. I finally got up and he caught hold of me and pulled me back. When I was standing up, I took hold of a tree and tried to stay up, and he would not let me, and down I went again. As to whether he ever turned me over on my back and pulled my clothes up, except where they blew up when I fell, he pulled my dress up first, and slipped his hand up my leg, about here (indicating to above knee). He slipped his hand up my little pants, and he did that while lying there by me, and he put his hand on my leg. . . . He would run his hands up my legs and pat me on the leg and I had been taught that it was wrong. He was trying to get me to love him. I didn‘t want to, I didn‘t have any use for him. This is all he ever did, about having his hand under my clothes. He never went any further. He tried to get me to play with his person. . . . He was trying to feel of my breast all the time, and pat me on the leg with one hand and on the breast with the other. He had one hand up my panties, and sometimes one over my mouth, and sometimes on my breast. At the time the Romine girl came up he was wanting to love me and was kissing me, and had his hand on
On redirect examination, among other things, she testified that when appellant tripped her, he still held her; she didn‘t know how he tripped her, whether he pushed her backwards or to one side or how. She said: “He was trying to keep me from hollering all the time. As to whether I was laying there still or struggling; I was trying to get up. I was scratching him with my hands, trying to get away. I didn‘t permit him to put his hands down to try to make me take hold of his person; I didn‘t want to. At the time he took his hands to pull my dress up, and put his hand under my slip, I did not allow him to do that; I didn‘t want him to. To prevent it, I took hold of his arm here, and tried to push him away. I was struggling. I could not struggle any harder than I did; I was struggling my best. He was using his hands and his feet trying to hold me. All this time that I was struggling to keep him from doing this, he was trying to keep me from hollering; he was trying to get hold of me; he was trying to take hold of my breast. He had two hands. These things were taking place pretty fast, whenever he tried to get me not to holler. He put his hand over my mouth, and his mouth over my mouth, and his hand over my throat. As to whether or not I know how long a half hour is, or is that my best estimate, well, I don‘t know; it was a long time, it seemed to me.” It doubtless did seem a long time—an age—to this little girl.
On recross-examination she said: “At the time the lady (Mrs. Kavalder) came down with that parasol, the defendant‘s person was exposed; he was trying to hide it. She came down, she was on the hill and his person was out then. When he got up his person was exposed. As to whether he turned his back to the crowd or his face, he sort of sneaked back like that. I don‘t know if he put his person up and buttoned up his clothes. I did see it distinctly. When I saw it, it was just hanging out, just like your wrist dangling around. (Indicated by counsel dangling his wrist.)” This is shown to have been after the other two little girls had heard her screams and calls for help, and saw her condition and ran back for help and after Mrs. Kavalder had hastened to the relief of the little girl and had holloed at the appellant, called him a brute, told him to get off the girl and he did sneak back off of her. Surely under these circumstances it is no surprise that his tool was “dangling around.”
On cross-examination, among other things, she testified that she had started down the creek and had gone some distance. She said: “The first time I heard someone holler was when I was past the buggy and was going to the bridge. I had started along the brow of the hill toward the shell road in the shade. I had gone further than fifty or sixty steps; I don‘t know how far it was. . . . When I heard the screams I had passed on the brow of the hill, and passed where the scream came from. I looked back; I heard her holler again and I turned back. I didn‘t see them when I turned back, not until I got straight up from them. I came back to the brow of the hill, and when I got up above them, I could see them. There were some bushes and weeds. They were close to the water, it was closer than fifteen feet to the water. It was about ten feet. . . . After I heard her holler the second time, I went back a little piece and then saw her. . . . He was lying on his side with his leg over her. I could not tell what they were doing. . . . I did not say anything to them: I went within about ten feet of them. I don‘t know whether she saw me or not; she did not say anything to me. I went back and looked at them and then broke and ran. I heard a little mumbling noise, but could not understand. I saw her dress a little above her knee. I did not see where the boy‘s hands were.” This witness then shows that she ran back to the buggy and
On redirect examination she testified: “When Leta came up to me from Mrs. Kavalder, her dress was torn; the lace was torn, the lace in front of her waist, and there were grass stains on her dress. . . . The reason I ran and told John Sue, I went for help; I went to get help to help Leta.” And then she explained the position the parties were lying when she first saw them. She said, “She was lying on her back and he was lying on her, a little back, and kind of on his stomach.”
On recross-examination, among other things, she said the stains were all over her underskirt; that she didn‘t see any on her shoulder, nor on the stomach of her dress, nor on the knees of her dress.
Mrs. Mary Kavalder testified that she lived on a farm at Alta Loma, in Galveston County, and saw the little girl Leta that evening. She said: “I and Mrs. Dulce drove in the park and a little girl came running and hollering and screaming that a man had her sister, and we should help. Mrs. Dulce said to me to run over, and I took my parasol and ran with the little girl. Then I saw the fellow laying on the girl there, and I held up my umbrella and hollered, ‘Let that girl go.’ Then he crawled on his hands and feet back to the bushes and then he ran. The little girl was laying flat on her back. He laid right flat on top of her. She laid there, when I came she jumped up; when he crawled off of her. When I first saw them—I did not see anything, I just run; I was some distance away from them when I hollered; then he raised up his head and he crawled back on his hands and feet backwards, then turned away from me and ran. The little girl jumped up and came to me and grabbed me around the neck and thanked me. She said, ‘I thank you, lady, for coming and helping me, and saving me.’ She had her dress in front all torn open. She shook like a leaf. No portion of her body was exposed at that time, not that I seen, only her breast. When she made these statements, ‘Thank you, lady, for coming up here and helping me,’ she was excited and nervous. She cried; she cried when I saw her. I did not see any portion of the defendant‘s person at that time. I run sideways up to him and he crawled back and he had his back to me before he got up.”
On cross-examination this witness showed that when they drove in the gate from the Dickinson road they drove by the grandstand, where people were dancing; that it was further than one hundred yards, and she jumped out of the buggy when about half way between the road and the grandstand; that it was from a quarter to a half mile from the grandstand to the road; that when she got out of the buggy and went down the hill it was back a piece to where these parties were; that they were pretty close up to the creek, within about ten feet of it, she judged. She said: “I could not see them because it is high and bushy. When I got to the brow of the hill I could see them perfectly plain then. From where they were, you could not look up and see where they were
On redirect examination she said: “This screaming I heard, just before coming down that way, it came up from the bayou. A little girl came running up to us and hollered that a man had her sister.” On recross-examination she said: “Besides myself, that little girl was around there. There was nobody else in hollering distance.”
Mr. and Mrs. Tinnin, the father and mother of the little girl Leta, testified to the torn condition of the little girl‘s clothes when she reached home that evening. This evidence was later excluded by the court.
John Sue testified that he had been boarding or working for the little girl Leta‘s father continuously for five years prior to this occurrence; that he had known said little girl ever since she was about ten years old; that her father was an old school mate of his and they were born and reared in the same country and had been good friends all the time as their fathers before them had been; that he weighed 152 pounds and was six feet high—taller than the appellant, though he guessed the
The constable, Mr. R. H. Romine, testified that he was at said picnic and saw appellant there that day; that when he first saw him he was walking as fast as he could, leaving the crowd; this was after the assault and after he had gotten up towards where the crowd was, near the grandstand. Mr. Romine said: “I saw his face that day. His lips were bleeding; I don‘t know whether it was something wrong with his lips, but he had a little blood along here (on his face). I don‘t know whether it was marked or just blood from his lip, along the side of his face, but his lip was bleeding.”
We think it unnecessary to further state any of the evidence. From what we have given and from the whole of the testimony, the jury were clearly justified to believe therefrom that the appellant, a grown man, enticed this little girl Leta away from her friends and from the crowd, some considerable distance, to a secluded place, hidden from her friends
2. Appellant‘s first bill of exceptions shows, in substance, that the verdict herein was rendered November 3, 1914; that two days later he filed his motion for new trial. In that motion he did not allege any misconduct of the jury. The trial judge fixed November 14 for hearing the motion. On November 11, by leave of the court, appellant, for the first time, complained of the action of the jury, as follows:
“8. Because of the misconduct of the jury trying this case in this: That said jury or some members thereof upon their retirement to consider this case, and after the charge and argument of counsel commented upon the failure of the defendant to testify in his own behalf and upon his failure to place character witnesses upon the stand in his own behalf, and considered such failure to testify and failure to place such witnesses on the stand in arriving at their verdict in this case.
“The matters set forth in the foregoing paragraph are charged to be true by the counsel for the defendant who signs this motion based upon information and belief and they verily believe and charge upon such information and belief that such are the facts.
“Wherefore, this defendant prays this court to set this motion down for a hearing, and that each and every juror that sat in this case be subpoenaed to appear before your honor and that they be placed under the rule and that they be examined by these counsel in open court under oath singly as to the matters in this section eight of this motion.
“Finally this defendant prays that after a fair and full hearing upon this motion that your honor do grant the same in all things and award to him a new trial as in law he is entitled to have.
(Signed) King & Hughes,
R. L. Pillow, Jr.,
Attys. for Defendant.
“The State of Texas,
“County of Galveston.
“Comes now Harry Tom King, one of the attorneys of record for the defendant herein, Harry Calyon, and in the above styled and numbered cause and upon his oath says that the matters set forth in paragraph 8
of this motion are true to the best of his knowledge, information and belief.
(Signed) “Harry Tom King.
“Subscribed and sworn to before me this the 11th day of November, 1914.
“L. R. Patton,
“Notary Public in and for Galveston Co., Texas.”
That on the next day one of his attorneys presented, in person, to the trial judge a carbon copy of his amended motion and told the judge he had filed the original with the clerk and asked for an early consideration relating to the misconduct of the jury; that a few hours later he asked the judge if he had read the motion, and he stated that he had. Whereupon he asked that he direct the clerk to issue process for the jurors as prayed for in said motion; that the judge stated emphatically that he would do no such thing; that he would have nothing to do with that portion of the motion setting up the misconduct of the jury; that he at once applied in writing to the clerk for process for each and all of the jurors, naming them, but not stating what their avocation was, nor their location; that when this was presented to the clerk, the clerk stated positively that he would decline to issue the subpoenas, unless forced to do so by mandamus; that on November 14, when the motion was heard, appellant was present, and his attorneys suggested that he wanted to take up the action of the court and clerk in refusing process for the jurors; that none of the jurors were then present and in attendance. Thereupon, he offered in evidence, particularly, that portion of his motion above copied, the file marks on the application for process and file mark on it and what happened and transpired concerning the amended motion and application for process stated above, and then:
“There was then offered the testimony of R. L. Pillow, Jr., one of the counsel of the defendant, who stated that he had talked to one of the jurors who tried the case of The State v. Calyon, No. 17,019, docket of this court, and that he had after such conversation furnished the counsel, Mr. King, who prepared and swore to the amended motion for a new trial now on file in this cause information concerning what had transpired between him, the said Pillow, and the said juror; and that he had truthfully passed the information received from the juror to his co-counsel, Mr. King. The defendant then offered the testimony of Mr. King, one of his counsel, who stated that he had prepared Section 8 of the defendant‘s motion for new trial upon information communicated to him by Mr. R. L. Pillow, Jr., of counsel for the defendant, and that he had made his affidavit thereto based upon such information so received.
“And it being agreed in open court between the State and counsel for defendant that the foregoing matters herein set out truly reflects the situation concerning that part of the defendant‘s amended motion for new trial setting up the misconduct of the jury, the defendant by his counsel then and there in open court excepted to the failure and refusal
“Wherefore, the defendant now presents this his bill of exception No. 1 and asks that this court examine, approve, allow and order the same filed as a part of the record in this case.
“The foregoing bill of exception having been presented to me and examined the same is now approved, allowed and ordered filed as a part of the record in this case. This the 23rd day of November, 1914.
“Robt. G. Street,
“Judge of the 56th Judicial Dist.”
This presents the only serious question in the case. The purported affidavit of Mr. King is simply and solely to the effect that: “to the best of his knowledge, information and belief” said jury or some members thereof, “commented upon the failure of the defendant to testify in his own behalf and upon his failure to place character witnesses upon the stand in his own behalf and considered such failure to testify and failure to place such witnesses on the stand, in arriving at their verdict in this case.”
In our opinion this amounts to no affidavit at all. The bill clearly shows that Mr. King had no knowledge whatever about the supposed misconduct of the jury; that he did not give what his claimed information was, nor did he give who his informant was. Mr. Pillow, one of appellant‘s attorneys, who claimed to have talked to one of the jurors, made no affidavit whatever. Neither did their client, the appellant, make any affidavit. On the hearing of the motion, neither appellant nor his attorney, Mr. King, nor his attorney, Mr. Pillow, even told who the juror was that Mr. Pillow claimed to have talked with. Nor did any or either of them tell what said juror had said to them. Nor did any or either of them give any reason or excuse why they did not produce the affidavit of said juror or any other juror, nor in any way show that that juror or any other failed or refused to make any affidavit, or that any of them had been approached for that purpose or requested to do so.
In the case of Hicks v. State, 75 Texas Crim. Rep., 461, 171 S. W. Rep., 755, we thoroughly examined, cited, quoted and stated some of the authorities on this subject. In that case one ground of the motion for new trial complained of the misconduct of the jury, alleging they
In the Hicks case, among other authorities, we cited, approved and quoted 14 Ency. P. & P., p. 904, as follows: “When the ground for a new trial consists of extrinsic facts and matters not of record, such as irregularity of the court, jury, . . . or misconduct . . . the proper method is to set forth the facts by affidavits in support of the motion. . . .” We also cited, approved and quoted 12 Ency. P. & P., pp. 557-8-9, as follows: . . . “When a party moves for a new trial on the ground of misconduct which occurred during the trial, he must aver and show affirmatively that both he and his counsel were ignorant of the misconduct charged until after the trial.
“An application for a new trial on the ground of misconduct must be supported by affidavits as to the facts.
“An affidavit to secure a new trial on account of the misconduct of a juror must clearly set out the facts constituting the alleged irregularity.
“The affidavit should be positive as well as specific, and should be sustained by oath and not merely founded on information and belief.”
And in that case we further said: “We think there can be no sort of doubt but that these authorities establish, beyond question, that in order for appellant to have had considered his ground of motion attacking the verdict of the jury on any matter extrinsic the record itself, that, as a matter of pleading, he must support it by its own affidavit or the affidavit of someone else specifically showing the truth of the grounds of attack. And when it is not so sworn to or supported it presents no question requiring the lower court to consider or investigate it.”
Our statute (
This court has all the time held that in an affidavit for a continuance which states that defendant “is informed and believes,” in setting out what the absent witness will swear, is wholly insufficient. (Labbaite v. State, 6 Texas Crim. App., 257.) In the very recent case of Byars v. State, decided December 9, 1914, wherein appellant claimed that the court erred in refusing his application for a continuance and wherein he swore what the witness would testify “so defendant has been informed,” this court, through Judge Davidson, said: “It will be noticed that the facts expected to be proved are not stated, except upon information. Appellant nowhere, in the application, nor attached to it, shows or attempts to show from whom he received such information. If appellant had been informed that the absent witness would testify as indicated, his source of information should have been stated and verified.”
So it has all the time been held by this court that in such application for continuance a mere statement that the appellant has used due diligence to obtain the witness is wholly insufficient; that the application must set out what the diligence is so that the court can tell therefrom whether or not the proper diligence has been used. (Henry v. State, 38 Texas Crim. Rep., 306; Cocker v. State, 31 Texas, 498.)
So it has all the time been held by our Supreme Court that in an affidavit for attachment it must state positively the facts on which the attachment is sought and that when it is stated merely on information and belief it is wholly insufficient to authorize or sustain an attachment. Sydnor v. Totham, 6 Texas, 189; Dunnenbaum v. Schram, 59 Texas, 281; Lewis v. Stewart, 62 Texas, 352.
In 2 Cyc., 25, it is said: “Where material allegations are made on information and belief the source of information and grounds of belief should be set out and a good reason given why a positive statement could not be procured.”
In Black v. State, 41 Texas Crim. Rep., 185, this court, through Judge Davidson, said:
“Appended to the motion for new trial is the affidavit of George H. Giddings, stating that he is a member of the firm of Culp & Giddings, counsel for appellant, that defendant did not testify in his own behalf and that subsequent to the return of the verdict he talked with Holman, one of the jurors, who informed him that some of the jury discussed defendant‘s failure to testify, while out deliberating upon their verdict. He further states that he prepared an affidavit showing the facts, and requested Mr. Holman to sign it, but he declined to do so until he could see his fellow jurors, and a request was made that the court inquire into the truth of the matter. None of the jurors filed affidavits.” He then shows that what purported to be a statement of facts on this question was filed after term time and for that reason could not be consid-
ered, and he concludes the opinion by saying: “For the reasons stated, we believe what is set out as a statement of facts in regard to the alleged misconduct of the jury can not be considered; nor the affidavit of the attorney of appellant, because it states no fact, and is not even supported by the affidavit of his informer.”
In 2 Thompson on Trials (2 ed.), sec. 2616, it is said: “That presumption of right acting which attends all official conduct, extends to the conduct of juries, and, as a general rule, this presumption can only be overcome by clear and satisfactory proof. A new trial will not be granted where the evidence fails to make out a fair presumption that the jurors were guilty of misconduct. The evidence to establish the misconduct must be clear and positive. The mere statement by an affiant of his impressions counts for nothing; and the same may be said of affidavits made on information and belief—at least unless such affidavit discloses from whom the affiant acquired his information, and then it must appear why the testimony of such person can not be had.”
It has always been held by this, and our Supreme Court, that in applications for new trial on account of newly discovered testimony, the affidavit of the new witness must be produced, or good cause shown why it is not done. Cotton v. State, 4 Texas, 260; Campbell v. State, 29 Texas, 490; Cole v. State, 40 Texas, 147; West v. State, 2 Texas Crim. App., 209; Love v. State, 3 Texas Crim. App., 501; Polser v. State, 6 Texas Crim. App., 510; Evans v. State, 6 Texas Crim. App., 513. And if the affidavit alleges information derived from another person, the name of such other must be disclosed, and his affidavit be filed or the want of it accounted for. Williams v. State, 7 Texas Crim. App., 163; Blake v. State, 3 Texas Crim. App., 581. Any number of cases to this effect down to this date could be cited, but it is unnecessary. No case can be found to the contrary. When the affidavit is to the effect that some other told affiant, such affidavit “is purely hearsay,” and is wholly insufficient. (Tyler v. State, 48 Texas Crim. Rep., 611.)
When our Supreme Court had criminal jurisdiction, in Dignowitty v. State, 17 Texas, 521, p. 532, it said: “The application for a new trial resting on the unsupported affidavit of the party, was manifestly insufficient, though its force had not been impaired by the counter affidavit or by anything appearing to the contrary, of the matters deposed by the accused.”
In Jordan v. State, 10 Texas, 479, our Supreme Court said:
“This court can not notice the mere statements of counsel made in their motion for a new trial.” And further, on page 502, said: “In considering the motion, the court may judge, not only of the competency, but of the effect of evidence. There may be cases where the court might well grant a new trial, if, in the opinion of the presiding judge, injustice had been done; while, at the same time, should a new trial be refused, this court would not be warranted in reversing the judgment. The judge who presides at the trial is afforded much better and more ample means of judging of the merits of the application than the revising court can be. And, therefore, it is the governing rule of the action
of this court, affirmed and enforced by repeated decisions, from the earliest cases upon the subject to the present time, not to reverse the judgment of the District Court refusing a new trial, unless some principle of law has been violated, misconceived or disregarded, to the prejudice of the party, or there is good reason to apprehend that injustice had been done, in refusing the application. Though the District Court, in its discretion, upon the application of the accused, might have granted a new trial, if, from the evidence and circumstances of the case, as they were apparent to the presiding judge, in his opinion, the ends of substantial justice required it.”
As said by Judge Davidson in Gordon v. State, 29 Texas Crim. App., 410: “Nothing will be indulged in favor of such matters (purported affidavits) when they operate as an attack upon the judgment of a court of record, to the end that the judgment may be set aside or vacated on appeal. Every presumption must and will be indulged by appellate courts, tending to uphold and sustain judgments of trial courts. A party attacking such judgments must make it apparent that sufficient error exists to set aside or annul them.” See also Morrison v. State, 39 Texas Crim. Rep., 519; Shutt v. State, 71 S. W. Rep., 18; cited, stated and quoted in said Hicks case, supra.
In Atchinson v. Bartholow, 4 Kan., 124; Thompson v. Higginbotham, 18 Kan., 42; Morgan v. Boord, etc., 9 Nev., 360; People v. Williams, 24 Cal., 31; People v. Tarm Poi, 86 Cal., 225; State v. Stucker, 58 Iowa, 496; Stanley v. Sutherland, 54 Ind., 339; Andrews v. State, 33 Ohio Cir. Ct. R., 564, it was held that affidavits must be positive, and when made on information and belief is wholly insufficient and should not be considered.
Our law prescribes (
In this case the court expressly told the jury, after telling them they were the exclusive judges of the credibility of the witnesses and the weight to be given their testimony “you are bound to receive the law from the court and be governed thereby.” In addition, he told them “the failure of the defendant to testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by you in your retirement.”
No doubt each and every juror in this case was fully and completely tested on his voir dire before he was taken, and they each were wholly disinterested, entirely impartial and fair, and without any prejudice or bias against appellant. It is no light thing to treat the jurors as violating their solemn oaths. When it is attempted to be done by an accused after conviction, certainly something more than a mere purported affidavit by one of appellant‘s attorneys to the effect that “to the best of my knowledge, information and belief, the jury or some members thereof, commented upon the failure of the defendant to testify, and his failure
Let us further consider the purported affidavit of Mr. King, one of appellant’s attorneys. It is simply and solely to this effect: “to the best of my knowledge, information and belief, the jury or some of them, commented upon the failure of the defendant to testify, and upon his failure to place character witnesses upon the stand in his own behalf and considered such failure to testify and to place such witnesses on the stand, in arriving at their verdict.” This states no positive material fact whatever. He in no way stated he had any knowledge on the subject. When the trial judge heard the motion and the evidence thereon, it was shown that Mr. King had no knowledge whatever. It did not state his information “to the best of my information,” states no material fact of even information. Nor did he state who his informant was, nor the information given him. Nor did he state why he did not attach an affidavit of his informant, nor that his informant refused to make an affidavit. When the trial judge heard the motion and evidence thereon, Mr. King swore only: “that he had prepared section 8 of the defendant’s motion for new trial upon information communicated to him by Mr. R. L. Pillow, Jr., of counsel for the defendant, and that he had made his affidavit thereto based upon such information so received”—simply that and nothing more. On that same hearing said Mr. Pillow swore only: “that he had talked to one of the jurors who tried this case, and that he had, after such conversation, furnished the counsel, Mr. King, who prepared and swore to the amended motion for new trial now on file in this cause, information concerning what had transpired between him, the said Pillow, and the said juror; and that he had truthfully passed the information received from the juror to his co-counsel, Mr. King”—simply that and nothing more.
We are impressed to ask, why did not Mr. Pillow himself instead of Mr. King, make the purported affidavit “to the best of his knowledge, information and belief”? But he did not do so. Nor did he on said hearing even tell the trial judge who the juror was who “talked” to him, nor what the “information received from the juror” was, nor why he did not get the affidavit of said juror what this “information” was. This “talk” of the juror with him was on or before November 11th. The hearing on the motion was had November 14th, three days later. There can be no doubt most, if not all the jurors, in this case, lived in the City of Galveston, and each and all of them could have been seen and “talked” to by one or the other, or both of appellant’s attorneys, or appellant himself, and that if there had been any foundation, in fact, for such an attack on their verdict, some or all of them would have made an affidavit to that effect. Or, at least, appellant or one of his attorneys could have shown they applied to them for an affidavit and they refused to make one. The statute says, “it shall be competent to prove such misconduct by the voluntary affidavit of a juror.” Surely the slightest
If such purported affidavit and what is disclosed by the record on that subject in this case should be held to require a trial judge to summon the jurors and require them to be subjected to the said treatment, then, as we said in the Hicks case, supra: “what a flood-gate of mere ‘fishing’ with a drag-net would be turned loose. Verdicts and judgments of the lower court, if such were the case, would be mere farces. The trial courts would be converted into courts for the trial of the jury and not of an accused.” And see further said opinion on this subject, 171 S. W. Rep., 766, which is applicable to this case.
This case was tried before that eminent, learned and just judge, Robt. G. Street. He doubtless personally knew each and all of the jurors; he heard the whole trial, saw and heard all the witnesses, saw the maneuvers of the appellant and his attorneys and knew that the appellant had received a fair and impartial trial, and under all the facts and circumstances, exercised that proper judgment committed to him, and as there was no basis for attacking the jurors as having violated their oaths, properly overruled the motion for new trial.
3. The trial judge, in charging the jury, as a preliminary statement, among other things, defined rape generally as prescribed by
4. Appellant’s other objections to the charge of the court present no error and are too general to be considered. They are to the effect: (1) The court in the main charge failed and refused to apply the law to the facts of the case as developed by the testimony; (2) that the court in the main charge, nowhere charged the jury upon any affirmative defense developed by the testimony; (3) that the only place in the court’s main charge authorizing an acquittal is “otherwise you will find the defendant not guilty.”
In our opinion the court’s charge does apply the law to the facts
His charge No. 2 is: “If you believe from the evidence in this case that the prosecutrix and the defendant went away on the creek together for the purpose on the part of each of them of engaging in sexual intercourse and that while engaged in said act, or while preparatory to such act, they were come upon by some third person and that thereupon the prosecutrix for the first time offered resistance to the efforts of the defendant to consummate the act of sexual intercourse and she, the prosecutrix, jerked or pulled away from the embrace or hold of the defendant and ran screaming from the scene of the act, or if you entertain from the evidence a reasonable doubt as to the existence of this state of facts, you will acquit the defendant and say by your verdict, ‘Not guilty.’”
And his charge No. 3, as follows: “If you believe from the evidence submitted to you on the trial of this case that the prosecutrix, Leta Tinnin, at any time after she met the defendant consented to have sexual intercourse with him on the day alleged in the indictment and that thereafter the defendant with her consent was attempting to carry out the proposition so previously consented to by her and they were discovered in the act and the defendant thwarted by third parties from carrying out the act of sexual intercourse. Or if you have a reasonable doubt as to whether or not these facts existed at the time of the alleged crime, then you will acquit the defendant and say by your verdict ‘Not guilty.’”
And his charge No. 4, as follows: “If you believe from the evidence in this case that the prosecutrix and the defendant left the dance pavilion at Thayman Park on the date alleged in the indictment and went for a stroll down the creek; that after reaching a distance of about 100 yards from the dance pavilion the defendant and the prosecutrix sat down together on the ground for the purpose of conversation and to while away the time, and that while sitting there the defendant attempted to kiss the prosecutrix and at the time put his hands on her breast and on her leg in an effort to merely fondle her person, and that although there for several minutes he never at any time pulled or attempted to pull her dress over her head and never at any time made any effort to have sexual intercourse with the said prosecutrix, then and in that event you will acquit the defendant and say by your verdict, ‘Not guilty,’ and if you have a reasonable doubt as to whether or not this is what happened you will acquit the defendant. This even though you may believe that the defendant had no right to fondle the person of the prosecutrix or even though you believe that in fondling her person it was without her consent.”
5. At first the court permitted Mr. and Mrs. Tinnin, the father and
The record presents no reversible error and the judgment will be affirmed.
Affirmed.
DAVIDSON, Judge.—I can not concur and may write on one or more of the questions mentioned in the opinion.
DAVIDSON, Judge (dissenting).—Appellant was convicted of assault to rape. I deem it unnecessary to go into a statement of the case on the facts, though I do not believe the statement of the evidence as set out in the original opinion is as clear and full as it should be, and in some respects is not, I think, in consonance with the record.
I more than seriously question the sufficiency of the evidence to support this conviction. It is shown on the motion for new trial appellant raised the issue of misconduct of the jury. This motion was set down for hearing by the court, and appellant asked that the jurors be summoned to testify. The matter set out in the motion for new trial was, the jury commented in their retirement on the failure of the defendant to testify in his own behalf, and also to place character witnesses upon the stand in his own behalf, and that they considered such failure to testify as well as the failure to place the witnesses on the stand in regard to his character. This is signed by counsel, and sworn to by one of the counsel on information and belief. Process was asked for the jurors to be brought into court, which the trial judge promptly and peremptorily refused to grant. My brethren affirm, holding these matters are not error. The statute provides, among other things, the court shall grant a new trial upon misconduct of the jury. Of course, it must in some way be material to or affect the verdict of the jury, or probably did. A comment on the failure of the defendant to testify is reversible error. It having occurred in the jury room, could not be raised except on motion for new trial. The further fact that the jury commented on the failure of the defendant to produce character witnesses is also reversible. The State would not have been permitted to introduce before the jury evidence of the failure of the defendant to testify or to produce character witnesses. It is provided by the statute also that it is “competent”
From the Richardson case, supra, I make this quotation: “We are not satisfied even as to the propriety of a judge privately seeking information as to a matter of fact pending before him for decision. Such statements are hearsay, and are not legitimate evidence. His decision on the motion for new trial should be based upon the evidence he has heard by affidavit or otherwise.
In Kelley’s case, supra, the court said: “The State filed no controverting affidavit contesting this issue, but the court heard evidence in relation thereto without such controverting affidavit. This action of the court, it is contended, is erroneous. We do not think so; first, because the testimony was not newly discovered, and this was manifest from the affidavit; and, secondly, because the court is authorized to hear evidence without such controverting affidavit. Willson Crim. Stats., secs. 2552, 2554.”
The statute does not prescribe a rule which excludes all testimony except that by affidavit. Affidavits may be filed, and the court may try the question on motion for new trial on the affidavits, but this is not the only rule, for the statute expressly provides it may be done “otherwise.” The word “otherwise” opens up any avenue that is legal for the court to determine the question by hearing evidence. It may be by witnesses or affidavit, but it may be by record evidence. There are many ways by which proof is reached through the evidence, and any character of testimony that proves the issue is admissible, or whether it proves it or not; if it sustains or tends to sustain the issue, it is admissible. To say that the issues on motion for new trial, on account of the misconduct of the jury, shall be tried only upon affidavit or when supported by affidavit, is a clear infringement and overruling of the statute and plainly sets at naught the express procedure provided by the Legislature. In fact, the court, in the opinion cited, indicates that perhaps the better and safer rule would be to have the witnesses before the court that he may look at them, hear them and know whether they are telling the truth or not. This could not be done if tried only upon affidavits,—not only so, but wherever an issue is to be tried the
March 10, 1915.
PRENDERGAST, Presiding Judge (additional opinion).—The original opinion herein, and the record, were turned over to Judge Davidson at his suggestion, on January 26, 1915, for investigation and examination. The next day he turned them over to the clerk for the opinion to be handed down with this endorsement on the opinion, “Davidson, Judge, dissents,” and with this at the foot of the opinion, “I can not concur, and may write on one or more of the questions mentioned in the opinion. Davidson, Judge,”—all written by him. On February 15, 1915, he filed his dissenting opinion. Neither of us saw or knew it until one of the stenographers thereafter called our attention thereto.
To his opening statement, “I deem it unnecessary to go into a statement of the case on the facts, though I do not believe the statement of the evidence as set out in the original opinion is as clear and full as it should be, and in some respects is not, I think, in consonance with the record,” we have to say: Although he took the record and original opinion for investigation and examination before the opinion was handed down, as stated, he in no way, and at no time, before the original opinion was announced and handed down, complained, suggested or intimated to us, that the statement of the evidence in the original opinion was not clear or full, nor that it was not “in consonance with the record.” He was present when the original opinion was handed down in open court. It occurs to us if any of his complaints now made had had the slightest merit, he would then in some way, have called our attention thereto. If he had, and there had been any error by us of either omission or commission, we would gladly have corrected it. Appellant filed no motion for rehearing making such complaint, nor does Judge David-
To his next statement, “I more than seriously question the sufficiency of the evidence to support this conviction,” we have nothing to say, except that a jury of twelve competent, fair, impartial and disinterested men, after hearing all the witnesses and seeing their manner of testifying and hearing full argument by the attorneys for both sides, upon their solemn oaths, said appellant was guilty “beyond a reasonable doubt,” and a learned, fair, impartial and just trial judge, who also heard all, also so said. We reached the same conclusion from a careful study of the whole record.
In the remainder of his opinion, Judge Davidson criticised us for not reversing this case because the trial judge refused to summon the jurors and require “that they be placed under the rule and that they be examined by these counsel in open court under oath singly” as to whether or not they had violated their oaths and were guilty of some misconduct in “trying this case,” on the bare statement by appellant’s attorneys in their motion for new trial, in effect, not sworn to by anyone, “that said jury or some member thereof” might have violated his oath.
Judge Davidson contends in his opinion, that as
In order to make the point clear in the Hicks case, in the original opinion, we quoted what the trial judge stated as the reason he refused to have the jurors who were present sworn and testify, in a separate paragraph, as follows: “No issue as to the misconduct of the jury having been submitted to the court, the jury was not permitted to be sworn and impeach its verdict which appeared not impartial or unfair under all the facts of the case” (171 S. W. Rep., 757), and applying what the judge so said to the facts on that question, we specifically stated: “The said ground of the motion for new trial was not sworn to by appellant or anyone else, and was not supported by the independent affidavit of anyone whomsoever.” (P. 757.) We then cited and quoted what Judge Harper said in Bryant v. State, 65 Texas Crim. Rep., 456, 153 S. W. Rep., 1156, as follows: “It has always been held, that when matters extrinsic the record are sought to be raised in the motion for new trial, such grounds should be verified by the affidavit of appellant.” Then in the opinion on rehearing in that Bryant case, in answer to appellant’s
Again, in the Hicks case in the opinion on rehearing, we demonstrated that the only question we were considering, or discussing, or deciding on that point, was that in order to require the lower court to hear evidence, at all, whether by affidavit or otherwise, it was absolutely essential for the motion for new trial attacking the verdict on any ground dehors the record, to be sworn to. After citing and quoting authorities clearly and distinctly so establishing, in a separate paragraph, we said:
“We think there can be no sort of doubt but that these authorities establish beyond question, that in order for appellant to have had considered his ground of motion attacking the verdict of the jury on any matter extrinsic the record itself, as a matter of pleading, he must support it by his own affidavit, or the affidavit of someone else specifically showing the truth of the grounds of attack. And when it is not so sworn to or supported, it presents no question requiring the lower court to consider or investigate it.” (171 S. W. Rep., p. 763.)
Again, in our opinion in this case, we distinctly state: “The basis of the holding of this court in that case (Hicks) was, that the court properly refused to hear the jurors and have them testify, although in actual attendance for that purpose, because the attempted pleading in the motion averring said misconduct of the jury was not sworn to by the appellant or anyone for him.”
All this is made so plain, clear and simple in all said opinions, that he who runs may read and not err therein. So that anyone can see that when Judge Davidson in his dissenting opinion herein says: “The court may hear this evidence ‘otherwise’ than by affidavit, and it has been, until the recent case of Hicks v. State, and the instant case, the rule that the trial court could hear it either way, as the statute provided,” and all else he says on that subject, is wholly uncalled for and has no application whatever to what we said or decided in either this or the Hicks case.
It is perfectly evident from a casual or careful reading of his opinion, he wholly misconceived the question. We discussed and decided the requisites of a proper pleading to admit any evidence whatever, whether by affidavit or “otherwise,” or by both affidavit and otherwise, and nothing else. He does not discuss that question at all, but does discuss the character of evidence which would be admissible when the proper pleading had been filed.
His animadversions upon us in his dissenting opinion, wherein he says we have given high standing on more than one occasion to the rule
We will let him answer himself, in this respect, by one of his own recent decisions. We refer to Hampton v. State, 63 Texas Crim. Rep., 100. He wrote the opinion in that case June 23, 1911, a few months after our accession to this court.
The official report of that case does not state what the fourth ground of the motion for new trial was, nor did Judge Davidson state what it was in his opinion holding it “is not verified in any way and can not be considered other than generally it ‘alleges misconduct’ of the jury.” The papers in that case have at all times since then been on file in this court and now are. We have procured them and will state fully and quote literally said fourth ground and the “swear at it” by the appellant therein. In order to make clear the reference in said fourth ground to these words, “in connection with the foregoing,” we will state the substance of the third ground which is evidently what is referred to by said words.
Hampton made a motion for new trial. In his third ground he complained of the judge’s refusal to withdraw from the jury the district attorney’s closing argument wherein he pointed at, and referred to defendant as “this bully” in connection with his remarks that defendant had come eight miles to the picnic, unlawfully carrying a pistol, with murder in his heart and was looking for trouble. Then his fourth ground was:
“4. In connection with the foregoing, defendant would show further that while the jury was deliberating upon its verdict, and before the verdict was reached, several members of the jury discussed the character and reputation of defendant; several of said jurors remarked that he, the defendant, was a mean looking negro; that he had the appearance of being a bully, and inquired of one of the jurors, who knew the defendant and lived in the same section of the county, whether or not the defendant was a gambler, a crap shooter and a bully, to which said juror replied, in the presence and hearing of other jurors, that he knew nothing personally about the facts inquired about, but that he had heard that defendant was a gambler and crap shooter, and defendant would show that such conduct of the jury was calculated to and did prejudice the defendant in the minds of the jurors, and that thereby defendant did not receive a fair and impartial trial. Defendant would further show that his character was not put in issue in the case.” This motion was signed by his attorneys, J. S. McIlwaine and Sawnie Robertson. It was then sworn “at” by Hampton, as follows:
“Dock Hampton, defendant, being duly sworn, says on oath that the
“Dock Hampton, Defendant.
“Subscribed and sworn to before me this the 15th day of October, 1910.
“Pat H. Beaird,
(Seal) “Clerk of the District Court, Smith County, Texas.”
Judge Davidson based his opinion on that point solely on the insufficiency of the motion and swear at it, and held: “The fourth ground of the motion for new trial alleges misconduct of the jury in their retirement in reaching their verdict. This is not verified in any way and can not be considered.” (Italics ours.)
A mere casual, or a most careful, reading and comparison of this and the Hampton case will show they can not be distinguished. Comment is unnecessary.
Our original opinion in the Hicks case was handed down November 26, 1913. Within fifteen days thereafter Hicks made a motion for rehearing. We held the case under consideration a long time under this motion, expecting Judge Davidson would write his dissenting opinion therein so that we could have the benefit of it. But finding he would not write it, on March 4, 1914, we handed down the opinion on rehearing. Judge Davidson did not file his dissenting opinion therein until December 21, 1914, thereby withholding the opinion from publication till the issue of January 20, 1915, of the advance sheets of the Southwestern Reporter. A reading of it, and our opinion therein will demonstrate he clearly misconceived the question in that, as well as in this, case. We have written this paragraph about the Hicks case because Judge Davidson added as a tail to his dissent herein this: “I wrote to some extent in a dissent in the Hicks case, and I write this in addition to what I there wrote.”
Evidently he could find no case or authority to back his dissent from November 26, 1913, when the original opinion was rendered, till December 21, 1914,—one year and nearly one month,—when he filed his dissenting opinion therein, nor since then to February 15, 1915, when he filed his dissent herein,—an additional time of nearly one year and two months, for none of the cases or statute cited by him are in point to support his dissent.
DAVIDSON, Judge (dissenting).—With some degree of regret I feel called upon to make a few remarks in reply to Judge Prendergast’s “Additional Opinion.”
Judge Prendergast refers to two cases in which I had the honor to write the opinions, Barber v. State, 35 Texas Crim. Rep., 70, and Hampton v. State, 63 Texas Crim. Rep., 100. The correctness of those opinions I think hardly debatable, and their inapplicability to this case is also beyond question. In the Barber case there was a motion made for a new trial, unsupported by affidavit or offer to adduce testimony, on
I do not, of course, believe in this case an affidavit was necessary. The jurors could as well have been brought before the court, and ought to have been produced. The affidavit on information and belief certainly ought to be legally sufficient basis for process for witnesses. Such affidavit can be and is basis for a criminal prosecution under the statute.
I would not have filed this in reply to Judge Prendergast’s “Additional Opinion” except for the fact that the two cases he cites have not been fairly construed or treated.