*1 169 Upon the state of the record we have no alternative other judgment, accordingly than to affirm the which is done.
Affirmed. ON FOR REHEARING. MOTION ge. LATTIMORE, Jud This recordcontains neither state- rehearing ment of exception. facts nor bills of The motion for proposition is based on the the indictment is fundamen- tally “Alleged testimony appel- defective in false sufficiently alleged lant is perjury not traversed.” The took place grand jury, being up before it set it became a inquiry grand jury material before one said whether William 1, 1936, carry Hannie unlawfully did on or about March on person pistol. and about his set out indictment further appellant appeared grand before and testified that, at difficulty said time Hannie had a Mul- with Owen cafe, he, Hannie, hern in a pistol certain the said did not have hand, being in his testimony it averred that said material inquiry grand testimony before the and that said knew, appellant was false as well truth and in and Hannie, State, fact cafe, county the said in said and and at said difficulty Mulhern, had a with said and did then pistol being inquiry there have a in his hand. The material difficulty whether pistol said Hannie had a in his hand when a place Mulhern, regard propo- took between him and said we by appellant, sition place laid it down viz: that in one is stated difficulty indictment in a swore that said restaurant, difficulty and in the traverse it is stated restaurant, difficulty was at the merit. Whether —as was in the restaurant or at the restaurant would seem affect the which material set out in the indictment testimony, is that said to have false pistol question at said time. Hannie did not have the contention, being appellant’s Not able to rehearing motion for is overruled.
Overruled. Pugh Estell v. State. May 27,
No. 18320. Delivered 1936. 24, Appeal Reinstated 1936. June Rehearing Denied 1936. October *2 the case. opinion states Carney Atlanta, Carney, &
Lloyd Davidson, Attorney, Austin, W. State’s for the State. dge. LATTIMORE, rob; pun- Ju Conviction for ishment, years penitentiary. two
Our attention is appeal called to the fact that the bond on only approved by this case is county. the sheriff of the Our requires statute approved bond be also the district judge. being record, Such the condition of the this is jurisdiction. appeal dismissed, days is fifteen from the date hereof in appeal which to file a bond. new *3 g CHRISTIAN, having perfected, Jud e. The record appeal the is reinstated and the case considered on its merits. A. D. 1934, Oliver September, testified that on the 26th of attempted and another man to rob him at the gun. grabbed of a gun When he help appel- the and called for lant and companion his Appellant fled. testified that found he possession gun Oliver in belonging of (appellant’s) a to his brother. they attempted When gun him, he away to take the from got a into scuffle and Oliver made an effort to strike him gun. with (appellant) the He away. Appellant ran denied attempted any that he at time to rob Oliver. exception
The first prior bill of impaneling recites that to jury the for the week the court delivered a lecture in which disagreement he jury juror stated to the that in case of one yield judgment should keep having “his in order to a from hung jury.” qualification In exception, his to the bill of the following court made the statement: “No statement to the up- effect that jury one man should not of hold the verdict the made, any impression was nor was left with far the opinion so as aware, anyone I am yield should his avoiding purpose hung with jury.” others for the of As qualified, exception the bill of fails to reflect reversible error. connection, however, In this we call attention to the fact lecturing practice jury this court has condemned of the the panel. State, 84, quote W., from Thomas 262 We v. S. as follows: language
“It difficult to use in a lecture such which is legitimate purposes, saying for intended something the court having may be as construed hurtful effect carefully analyzed pending. We have not cases these matters, view our this case should re- of conclusion be suggestion versed, the with but content ourselves venturing courts should avoid out into of lectures broad fields juries upon upon necessary topics.” their duties other than charge ground Appellant excepted to the of the court on the that, in connection with the of the offense of definition rob- bery, jury punishment robbery were instructed that the for penitentiary with firearms was death or confinement charging years. for not than In assault less five law of rob, correctly penalty. with intent the court stated the penalty. per- assessed minimum are unable to We penalty ceive how the statement of the court as to the injured robbery could have firearms holding upon the We of no case it is incumbent know proof “fraudulently” define term on the when .to here, part shows, as it of the does State gun. required made "with a Nor do we believe court was “by putting in or to define the term violence and fear of life bodily injury.” alleged
In that one his motion for new trial quote jurors neither a householder nor freeholder. We “Though C., P. sec. as follows: from Branch’s Ann. juror qualifies and defendant as a householder on his voir dire freeholder he is neither a householder nor does not discover ground the ab- verdict, for a new trial it is not until after State, Ferguson v. showing probable injury.” In sence of a *4 (2d) said: this court 40 S. W. complaint that one of the
“Appellant of the fact makes to neither jurors after the trial be him discovered who tried was ** * state. county nor a householder a freeholder in the that in- Conceding is true and the contention the fact that by of silence prevented reason this was of fact the. formation point upon general questions were juror this the of the when during qualification the tales- of the by below the court asked given, penalty lowest men, still, that the view the fact in of injury particular showing any made of is no and that there the matter and hold authorities resulting, the must follow we injury.” of no showing injury. probable of present there is no the case In holding to the matter in warranted not be would Hence we error. present reversible newly up dis- appellant set trial for new his motion In a witness affidavit of the attached He evidence. covered according of that, recollection to the best it stated wherein him that the party stated to had witness, injured the said pistol. do not a We him with made had been testimony purely decide whether said im- would have been peaching may, opinion in Be nature. that it we are of the as concluding likely court was in warranted it would changed have the in event trial. result the of a new See C., Branch’s Ann. P. sec. 201.
We to are unable evidence is the support judgment insufficient the of The settle- conviction. testimony ment of in the conflict the was for the who judges were credibility the of exclusive the of the witnesses weight testimony. and the to be their judgment is affirmed.
Affirmed. foregoing opinion Appeals of the Commission of has by Judges Appeals the examined of Court of Criminal approved by the Court. ON FOR MOTION REHEARING. Judg
HAWKINS, rehearing appellant e. In hismotion for presented stresses complaining by exception one, of bill number gave general oral instructions impinged appellant’s rights. again on haveWe carefully qualifica- examined said bill. In view of the court’s tion specifically showing thereto the substance of he what said to week, jury upon impanelment the occasion of their for the originally,
we to the adhere conclusion announced no reversible error is shown.
After a further of review the evidence we remain of the opinion refusing trial court committed no error in ground newly new trial on the of discovered evidence. The beyond dispute record it clear makes whatever occurred Oliver, prosecuting between and the witness fire- figured arm which and not the transaction was rifle pistol. This is shown both witnesses for the State and In view such fact the uncertain recol- established newly lection affi- discovered witness as shown his thought davit that Oliver witness the he told assault was made *5 changed pistol likely with a result of would have jury. if such had been evidence before again thought ques- necessary other It is not review the original opinion. They appear to tions our have discussed in disposed correctly of. rehearing is overruled. motion
Overruled.