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John Smith and Thomas Jones, etc., who sat upon and tried the case, said affidavits being marked as exhibits A and B."

In Johnson v. State, 24 S. W. Rep., 94, when Presiding Judge Hurt and Judges Davidson and Simkins constituted this court, through Judge Simkins they said: "The other ground upon which a reversal is sought is by impeaching the verdict of the jury. This, however, can not be considered, as the affidavit does not appear in the record as being signed or sworn to. We do not hesitate to say that if we were to consider it no good reason is shown for reversing this case. It does not pretend to state the names of the jurors who made the statement against appellant, nor that it influenced the jurors' finding in any way. There was no issue tendered the State in said motion. The judgment is affirmed."

In Morrison v. State, 39 Texas Crim. Rep., 519, when this court was composed of said Presiding Judge Hurt and Judges Davidson and Henderson, through Judge Henderson, they said: "Appellant assigned as one of the grounds of his motion for a new trial that the jury received other testimony than that developed on the trial of the case, towit, that one of the jurors stated in the jury room that a former jury which tried the case found defendant guilty, and assessed his punishment at twenty years in the penitentiary. Appellant stated in his affidavit that he was unable to procure an affidavit from any of the jurors as to the facts, because they were not willing to make one, and asked the court to summon the jurors who tried the case, and place them under oath, so that the defendant might have the benefit of their testimony. The State made a motion to strike out said affidavit and that part of the motion, because it was too general, and did not set up the facts. The court granted the motion, and struck out that part of the defendant's application for a new trial. Appellant then offered to show by one A. Cohen that he was one of the jurors who tried the case, and that, after the jury had retired to consider their verdict, some member of the jury stated that defendant on a former trial had been convicted, and given twenty years in the penitentiary; that said statement about what defendant had received as punishment at a former trial influenced him in the verdict rendered on the last trial. The district attorney objected to this evidence on the ground that it should be presented by affidavit, and not stated orally; whereupon defendant's counsel stated that the witness was unwilling to make an affidavit, but that he would swear to the above facts upon the stand under oath; and the court, over the defendant's objection, refused to allow said. witness to testify as aforesaid. It is not necessary to decide the questions involved in this matter, as the case must be reversed on other grounds heretofore stated. We are inclined to the opinion, however, that the affidavit seeking to attack the verdict of the jury was too general. The practice of allowing jurors to impeach their verdict is not countenanced in the courts of most of the other States of the Union. See 2 Thomp. on Trials, sec. 2618, and authorities there cited. Our courts, however, have taken a contrary view, and we have gone to a

considerable extent in authorizing jurors to impeach their verdicts. The attempted impeachment here, however, as far as the predicate was concerned, stated no facts, and, we think, was too general in its terms. It is not deemed necessary to discuss what effect the announcement in the jury room that appellant had previously been convicted, and his punishment assessed at twenty years in the penitentiary, may have had upon the jury. The mere statement of that fact in the jury room may not have operated to the prejudice of appellant. Before a case would be reversed on this ground some prejudice must be shown. The bare ɛtatement that a former jury had tried the case, and rendered a certain verdict against defendant, would not ordinarily cause a reversal."

Again, when Presiding Judge White and Judges Hurt and Davidson constituted this court it, in Gordon v. State, 29 Texas Crim. App., 410, in an opinion by Judge Davidson, held: He stated that appellant filed his motion for new trial and therein alleged that on the trial below he did not plead, nor did his counsel for him, nor was he called on to plead, nor offered the privilege of pleading, and that neither he nor his counsel refused to plead so as to authorize the court to enter one for him. "This motion was sworn to by the defendant in the court below. There was a sworn motion also to correct the judgment by eliminating therefrom the recitation of the plea of not guilty therein entered. This, as well as the motion for a new trial, was overruled. There are no affidavits in the record as to the truth of these statements of defendant, except his own." Then in the opinion is copied what purports to be an affidavit not signed, purporting to be the affidavit of two of his attorneys, wherein it is stated that they examined said motion for new trial and that the matters and things set out therein are within their knowledge true and correct. To the bottom of this document this appears:

"Witness my hand and seal of office at Fort Worth, this the 24th day of January, 1891.

"L. R. Taylor, District Clerk."

The opinion proceeds to state that this document was filed January 24, 1891. It was not signed by either of the parties named in the body of it. It did not have the jurat of the officer attached to it, certifying the necessary oath was administered to said named parties, nor is there anything to indicate that they were sworn to its contents. Judge Davidson then says: " . It will be seen that it is not an

affidavit. It can not be treated as an affidavit.

"Nothing will be indulged in favor of such matters 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 judg ments must make it apparent that sufficient error exists to set aside or annul them." And he affirmed said judgment.

In a death penalty case, which was affirmed, Shutt v. State, 71 S. W.

Rep., 18, this court, when composed of Davidson, Presiding Judge, and Judges Henderson and Brooks, through Judge Brooks, said: "In motion for new trial he (appellant) also complains that the foreman of the jury, Hardy, prior to being accepted upon the jury, stated that he did not have time to serve upon the jury; that he would acquit or convict defendant in five minutes. To strengthen appellant's position, he insists that the verdict was returned in thirty minutes. We can not review this question, in the absence of bill of exceptions. And there are no affidavits presenting this matter, but it is brought forward in the motion sworn to by appellant. It is well known that issues of fact made in motion for new trial must be sustained by evidence dehors the motion. The fact that appellant swore to the same is not sufficient," citing Gordon v. State, supra.

In the case of Moss v. State, 39 Texas Crim. Rep., 3, on rehearing, this court, through Judge Davidson, said: "The grounds of the motion for a new trial for that reason were not, and could not be, considered. The motion for rehearing is based upon the fact that said statement was not considered, and asserts as a fact that the county judge approved a statement of facts, and had it filed during the term at which the case was tried. This motion is signed by the attorneys, but there is nothing to indicate to this court that said statement of facts was approved and filed, or that there was any statement of facts prepared in the case, outside of this statement of the motion. This motion is not sworn to, and there is nothing in it, by way of certificate or affidavit or certified copies, that there is a statement of facts on file in the trial court, approved by the judge. As the matter is presented to us in the motion, we can not consider it."

In Dignowitty v. State, 17 Texas, 521, when our Supreme Court had criminal jurisdiction on this subject it said: "The application for a new trial, resting upon 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, or the matters deposed to by the accused."

In Goodson v. State, 41 S. W. Rep., 605, this court, through Judge Davidson, said: "As the second ground of the motion for a new trial, appellant stated that Marcus Taylor was related to W. S. Brooks within the third degree, and the record shows that W. S. Brooks was joint owner of the stolen animal, and that, therefore, Marcus Taylor was disqualified as a juror. These matters are in no way verified in any part of the record, except that Brooks was a part owner of the animal, and there is no bill of exceptions showing that Marcus Taylor was a juror in the case. There is nothing except the simple statement of appellant in his motion for a new trial, indicating that Marcus Taylor was related to W. S. Brooks. If counsel desired this matter considered on appeal, they should have established it in some manner." See, also, Lester v. State, 2 Texas Crim. App., 432.

In Stubblefield v. Stubblefield, 45 S. W. Rep., 967, the Court of Civil Appeals of the Third District, through Chief Justice Fisher, on

this question said: "The point presented in the motion for a new trial that the juror Daniels was not qualified to sit upon the jury was not raised in a way that required the trial court to pass upon that question. Daniels, it seems, was one of the jurors that participated in the trial of the case. No objection was raised at the time as to his disqualification, which consisted, as stated in the motion for a new trial, of bias in favor of the plaintiff, and that he made statements to the jury after retirement to deliberate upon their verdict. The conduct of the juror in this respect, and his disqualification by reason of bias in favor of the plaintiff, are only called to the attention of the court in the motion for a new trial, which was not sworn to; nor is it supported by any affidavit whatever."

Kahanek v. Galveston, etc., R. R. Co., 72 Texas, 476, Chief Justice Stayton of our Supreme Court, in passing upon what character of affidavit could be considered in a motion for new trial, said: "It may be claimed, however, that appellant offered such evidence in connection with his motion for a new trial as was sufficient to show that the county judge was not disqualified. That consisted of an unsworn statement made by the county judge on the 10th of December, 1887, and filed with the motion. It was no part of the proceedings or record of the proceedings which were had on August 6, 1887, in the County Court. "No bill of exceptions was taken to the action of the court in overruling the motion for a new trial, and we are unable to ascertain whether the court considered or refused to consider the statement made by the county judge.

"If he refused to consider it he did not err, even if upon an issue made he might have heard evidence for the respective parties as to the qualification of the county judge. Slaven v. Wheeler, 58 Texas, 23.

"When matters of fact are involved in the rulings of the court below such rulings will not be revised by this court, unless the facts are substantiated by proper bill of exceptions. Statements in a motion for new trial or assignment of error will not suffice." Marshall v. State, 5 Texas Crim. App., 273; Sharp v. State, 6 Texas Crim. App., 650. In Jordan v. State, 10 Texas, 480, in discussing the ground of a motion for new trial of matters dehors the record, the 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 has 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; yet, from anything before us in the record, we can not say that any principle er rule of law has been infringed or injustice done."

In Short v. State, 36 Texas, 644, the Supreme Court said: "After the verdict of the jury the defendant filed a motion for a new trial, and assigns as grounds for the motion two alleged errors. The second, which is, that there were not twelve competent and legal jurymen empaneled to try said case, appears first in the motion for a new trial, and is wholly unsupported by the record, and therefore deserves no further notice here."

In Forcy v. State, 60 Texas Crim. Rep., 206, it is said: "It has been many times held that a mere statement of a fact in a motion for new trial or in bill of exceptions is not the equivalent of finding that the fact so stated is true."

In Salmon v. State, 69 Texas Crim. Rep., 506, 154 S. W. Rep., 1026, this court said: "Appellant contends in his motion for new trial that the verdict of the jury was reached by lot. This motion is not sworn to and is in no way supported by any affidavit. Under such circumstances the court did not have to consider it."

We have already quoted in the original opinion what this court said in Bryant v. State, 69 Texas Crim. Rep., 455, 153 S. W. Rep., 1156: "It has always been held that when matters extrinsic the record are sought to be raised in motion for new trial, such ground should be verified by affidavit of the appellant."

In Serop v. State, 69 Texas Crim. Rep., 399, 154 S. W. Rep., 558, this court said: "In the motion for a new trial, defendant alleges that the jury discussed on their retirement the prevalence and frequency of robbery in the City of Dallas, and alleges that this discussion was detrimental to defendant. This ground of the motion is not supported by the affidavit of any juror nor any person who purports to know that such matters were discussed by the jury; therefore it presents no error." While some of these cases may not be directly in point, the trend of all of them are. The italics in quoting above are ours.

In the original opinion we also cited Maples v. State, 60 Texas Crim. Rep., 169; Patterson v. State, 63 Texas Crim. Rep., 297; Scott v. State, 143 S. W. Rep., 228, to the effect that the affidavits contesting the grounds of his motion for new trial extrinsic the record were void. and could not be considered when made before the attorney for either side in the case. There are other decisions to the same effect unnecessary to cite. This court, through Judge Davidson, in said Maples case, supra, said: "Under our statute the court may decide a motion for

Vol. 75 Crim.-31

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