Dansby v. State, 34 Tex. 392

Dansby v. State

34 Tex. 392 | Tex. | 1871

Ogdeh, J.

The indictment in this case is sufficient to sustain the. verdict and judgment, and" the charge of 'the court is a fair exposition of the law in relation to the case, as made out by the indictment and the evidence adduced on the trial; and we see no *394sufficient error in the refusal hy the court to give the charges asked by the defendant to authorize a reversal of this case. Nor was there any error in the ruling of the court on the motion for a new trial, on account of newly discovered testimony. To entitle a party to a new trial on account of newly discovered evidence, he must show by his affidavit that he has used due diligence to have the testimony before the court. In this case the defendant shows by his affidavit that he knew the witness was present at the time of the difficulty, and knew the facts of the case. He should therefore have had him subpoenaed; and for this neglect he was not xentitled to a re-hearing. But it appears from the affidavit of Wolf, his testimony was .sought to contradictor impeach the testimony of another witness. This was no ground for a new trial. (Scranton v. Tilley, 16 Texas, 193.) The testimony of Wolf would seem to impeach the evidence given by all the other witnesses, for the State or the defendant, and even contradicts his own statement to some extent; and we think the court would he justified in coming to the conclusion that ho either knew nothing of the matter; or else he testified to that which he knew was not true, and, at any rate, the court was justified in wholly disregarding his affidavit.

But we think there was a sufficient cause shown for setting aside the verdict, in the affidavit of the jurors, that the deputy sheriff and bailiff who had charge of the jury had interfered to direct, and did direct and dictate the verdict of the jury. This was in direct conflict with and violation of articles 3074, 3137 and 3998, Paschal’s Digest, and an outrage upon the right of trial by jury. It is the duty of the courts to see that the law in this respect is most rigidly executed; and for any and every violation of the sacred right of trial by a jury, to punish the offender to the extent,of the law. For thus having been deprived of the right of a trial by an impartial and uninfluenced jury, the defendant was entitled to a new trial; and for the error of the court in refusing a new trial, the judgment is reversed and the ease remanded.

Reversed and remanded.