Lamont v. State

164 S.W. 3

• Court: Court of Criminal Appeals of Texas
• Decided: February 18, 1914
• Status: Published

Opinion

DAVIDSON, J.

This case is before us without a statement of facts or bills of exception.

The first ground of the motion for new trial, had it occurred as alleged, and been properly verified, might have presented a serious question; but it is not verified in any way. It alleges as a ground of the motion : That, after the state and defendant had announced ready for trial, and the testimony, had all been introduced, opening argument Of. counsel was made by the state, and argument for defendant closed. The court suspended, the trial of said cause, over appellant’s objection, and went into the trial of a com-, panion case, Terry v. State, 164 S. W. 2; the evidence in both cases being identical.. The court forced the defendant in the Terry' Case to draw a jury from the same panel of jurors trying this case, and the same jury to a man was drawn to try the case, and the Terry Case proceeded to trial with identically the same jury. This put the burden upon the said jury to try two cases, and to have in mind at the same time all the facts connected with both cases, and in a manner that, in deliberating upon one of the cases, they could not exclude from their minds the evidence in the other. When they had finished the Terry Case, and rendered a verdict, they were called back into the jury box to proceed with the trial in this case. That some of the jurors, wMle rendering their verdict in the Terry Case, were of the opirnon that their verdict was to cover both the cases, and that they were trying both cases together, and thought they had disposed of this case until they were called back to proceed with it; That the jury were influenced in this case by the testimony in the Terry Case. In support of tMs ground of his motion, the defendant says he files herewith as a part hereof the affidavit of J. M. Farr; but the affidavit was not filed, nor any bill of exception reserved. By the simple allegation in the motion, with nothing to verify it either by affidavit or bill of exception, and without the statement of facts, we are unable to re- ■ vise this ground.

The remaining ground of the motion relates to the statement of facts which cannot be considered because the evidence is not before us. Had the first ground mentioned been properly verified and properly presented as alleged, it would have presented a very serious question, and a fatal error to the conviction.

As presented, however, the judgment is affirmed.