Wyatt v. StateWyatt v. State
- Reporters:
- , ,
- Before:
- Davidson
Lead Opinion
Cоnviction for violating the local option law. The indictment was attacked. It follows the approved forms, and is sufficient.
Newly discоvered evidence is alleged. An examination of it, however, shows that if the facts stated are true, they were well known to defendant before the trial, and no effort was made to secure the presence of the witness. It went to prove an alibi. If the testimony of the witness whom it is alleged would testify to the facts is true, then appеllant was with him and knew of the facts at the time of the trial and no effort was made to secure his presence.
It is also urged as a grоund for reversal that defendant was not present at the time the vеrdict was returned into court. This is shown to be a true statement of the fаct. This constitutes no ground for reversal. Article 749, Code Criminal Procedure, provides that in all felony cases the accused must be present when the verdict is returned into court, but in misdemeanor cases the verdict may be received in the absence of the defеndant. There is a conflict in the facts. The evidence for the Stаte supports the conviction. The jury saw proper to believe the State’s version, and we have no authority to set aside the judgment where the evidence is in conflict. The judgment is affirmed.
Affirmed.
Addendum
ON REHEARING.
March 14, 1906.
DAVIDSON, Presiding Judge.The judgment was affirmed at a former day of this “term, and the motion for rehearing is рredicated upon error in the court holding that appellant’s presence was not necessary when the verdict was received from the jury, and cites us to article 633, Code Criminal Procedurе, which is as follows: “In all prosecutions for felonies, the defendant must be personally present on the *195 trial, and he must likewise be prеsent in all cases of indictment or information for misdemeanors whеre the punishment or any part thereof is imprisonment in jail.” Article 749, which must be construed in connection with article 633, supra, provides, “In аll felony cases the accused must be present when the verdict is returned into court, but in misdemeanor cases the verdict may be received in the absence of the defendant.” We do not beliеve these two statutes are contradictory or in conflict with each other. It is a familiar rule that, where two statutes are in aрparent conflict they must be reconciled, if possible, so that both may stand. In our judgment, it is a correct construction of these twо articles to hold that they can stand, and that article 633, providing thаt in misdemeanor cases involving imprisonment as a part of the punishment, is not inharmonious with article 749, which authorizes the reception of the verdict at the conclusion of the trial in the absence of the defendant in misdemeanor cases. In all felonies and misdemeanors involving jail imprisonment the party must be present during the trial by the terms of article 633, but by the terms of article 749, in felony cases the dеfendant must be present when the verdict is returned; whereas in misdemeаnors it is not necessary, showing the legislative intent was to draw a distinctiоn between what is termed a trial and the reception of the verdict at the hands of the jury. This construction harmonizes the two statutes; and in our judgment is in accord with the intent of the Legislature in passing the two stаtutes. That body has seen proper to make that distinction, and it was within their province to do so. Therefore, we are of opinion that the motion for rehearing is not well taken. The motion is accordingly overruled.
Overruled.