Appellant was indicted for murder in the second degree, convicted and his punishment assessed at ten years confinement in the penitentiary.
The evidence was ample to authorize the verdict. We see no necessity for reciting the facts.
There are some bills of exceptions and grounds of the motion for new trial, complaining of some unimportant matters. We have reviewed them all, — none of them present any error. In fact appellant, in his brief, does not present most of them. We will discuss and decide those questions briefed, as they are the only ones necessary to discuss.
Upon convening the court Monday morning the district judge empaneled the jury for the week, being those selected by the jury commissioners. As soon as he did so and before any case was called for trial, he said to the whole jury panel: "That the people were governed by the courts, that the power to punish was the thing those of evil tendencies feared. That even in the business world the power to employ and discharge was the thing that secured obedience to the rules of the employer and good service to him. That in our government under our system the power to punish or to inflict a penalty for felony rests with the jurors. That our law provides that no man can be tried for felony
except by a jury. The jury, therefore, is an indispensable and all important branch of the court, and each of you, therefore, are officers of the court. Your responsibility is a grave one. As upon the manner in which you discharge your duty depends the character of government we will have. If you are a respecter of no person but let the law, like the dews of Heaven, fall equally and alike on all, visiting penalties where the law and the evidence warrant them, violation of the law will become less frequent year by year. But if the juries of the country become lax in this respect, and through lenience, or personal favoritism, overlook cases where the evidence shows wilful violations of the law beyond a reasonable doubt, and points unerringly to the parties being tried as the one who committed the infraction, crime will increase year by year. But, gentlemen, this court desires no innocent man convicted and none where there is a reasonable doubt as to guilt. In fact, gentlemen, it requires thirteen men in this court to convict a man, and if the jury should make a mistake and convict in an improper case, this court would unhesitatingly set the conviction aside. In fact, the court has done so many times in this district. I simply mention this to show you that while the court desires the law upheld and the guilty brought to justice it is far from desiring any innocent man convicted. The laws are made to protect the innocent as well as to punish the guilty."
When the court said this appellant excepted thereto upon the grounds that it was detrimental to his rights, calculated to prejudice his rights before the jury and to lead the jurors to believe that the court desired them to convict and that in case they did in an improper case, the court would thereafter protect his rights, and the jurors were, therefore, much more ready to convict than they would have been but for what the judge said to them and their belief that the court would rectify any error in convicting.
The court in allowing the bill, qualified it as follows: "That four of the jurors who heard the lecture sat upon the trial of the defendant, that the defendant did not exhaust his peremptory challenges on the panel for the week, but voluntarily accepted said four jurors when he had ample challenges to strike them and that it was not made known to the court thereafter that any objectionable juror was taken by the defendant."
In contending that this presents reversible error, appellant cites us to Jones v. State, 51 S.W. Rep., 949; Attaway v. State, 55 S.W. Rep., 45, 41 Tex.Crim. Rep.; Chapman v. State, 57 S.W. Rep., 965, 42 Tex.Crim. Rep.; Murphy v. State, 57 S.W. Rep., 967. We have examined those cases, and think this case and what the judge said is nothing like what was objected to and held error by the judge of the lower court in said cases.
The court in this case gave a full, complete and accurate charge submitting every issue raised and all issues that were raised in appellant's favor. There is no complaint whatever to the charge of the court. Besides this, appellant, in no way in his bill, or otherwise, shows that appellant was injured or could have been injured by what the court
said to the jury, complained of. The mere objections on his part, given above in his bill, by no means and in no way proved themselves. It is not shown that either of the jurors who heard the court and sat as a juror in this case on his voir dire examination or otherwise, in the slightest way indicated that what the judge said, could or did influence him against appellant in this case. He never objected to either of the jurors because of the remarks of the court or otherwise. He voluntarily accepted them, as shown by the court's qualification of his bill. This presents no error.
Appellant made no motion for a continuance. He did file a motion, however, to postpone the trial of the case for ten days to give him an opportunity to examine the list of jurors for the week for the purpose of determining whether he would exercise his peremptory challenges to any of the jurors. The court overruled this and in approving appellant's bill on the subject, explained the matter as follows: "The action and ruling of the court was one that applied to all parties in the court, including this defendant. From experience, the trial court had learned, Hood County being a small county, that interested parties and their friends had been in the habit of getting the jury list as soon as the same was opened, and by diligence and energy, of in some way, disqualifying all of the men on said list who were objectionable to the parties to be tried prior to the sitting of the court; and to prevent this mischief, and with the desire that men drawn by the jury commissioners should not be designedly disqualified by a defendant or his friends before court convened, and out of a desire that a fair and just jury should be had in every criminal trial, the court some years ago established the rule and has rigidly adhered to it down to and including the date of this trial, that the names of the jurors drawn by the jury commissioners should not be given out until the week for which said jurors were to perform service. The court further certifies that the jury list was delivered to counsel for the defendant immediately after the jury for the week had been empaneled by the court, and that counsel were given all the time they asked in which to investigate, confer about and pass on the various jurors on said list. Had counsel desired further time the court would certainly have granted it to them, before they were required to challenge the jurors. But they took all the time that they desired and voluntarily returned to the court their list with their peremptory challenges thereon and expressed no desire whatever for further time to investigate the panel. The court further certifies that only four jurors were procured from the regular panel, such a great number disqualified before the defendant was required to challenge. And the court further certifies that the defendant had more than enough challenges to have challenged each of said four jurors at the time his list was returned to the clerk, but he declined to do so."
Appellant's complaint was that prior to the term of the court the district judge had instructed the clerk and sheriff to permit no one to see said jury list and panel for that week until the court convened and the jury for the week was empaneled; and appellant complained that
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Appellant was indicted for murder in the second degree, convicted and his punishment assessed at ten years confinement in the penitentiary.
The evidence was ample to authorize the verdict. We see no necessity for reciting the facts.
There are some bills of exceptions and grounds of the motion for new trial, complaining of some unimportant matters. We have reviewed them all, — none of them present any error. In fact appellant, in his brief, does not present most of them. We will discuss and decide those questions briefed, as they are the only ones necessary to discuss.
Upon convening the court Monday morning the district judge empaneled the jury for the week, being those selected by the jury commissioners. As soon as he did so and before any case was called for trial, he said to the whole jury panel: "That the people were governed by the courts, that the power to punish was the thing those of evil tendencies feared. That even in the business world the power to employ and discharge was the thing that secured obedience to the rules of the employer and good service to him. That in our government under our system the power to punish or to inflict a penalty for felony rests with the jurors. That our law provides that no man can be tried for felony
except by a jury. The jury, therefore, is an indispensable and all important branch of the court, and each of you, therefore, are officers of the court. Your responsibility is a grave one. As upon the manner in which you discharge your duty depends the character of government we will have. If you are a respecter of no person but let the law, like the dews of Heaven, fall equally and alike on all, visiting penalties where the law and the evidence warrant them, violation of the law will become less frequent year by year. But if the juries of the country become lax in this respect, and through lenience, or personal favoritism, overlook cases where the evidence shows wilful violations of the law beyond a reasonable doubt, and points unerringly to the parties being tried as the one who committed the infraction, crime will increase year by year. But, gentlemen, this court desires no innocent man convicted and none where there is a reasonable doubt as to guilt. In fact, gentlemen, it requires thirteen men in this court to convict a man, and if the jury should make a mistake and convict in an improper case, this court would unhesitatingly set the conviction aside. In fact, the court has done so many times in this district. I simply mention this to show you that while the court desires the law upheld and the guilty brought to justice it is far from desiring any innocent man convicted. The laws are made to protect the innocent as well as to punish the guilty."
When the court said this appellant excepted thereto upon the grounds that it was detrimental to his rights, calculated to prejudice his rights before the jury and to lead the jurors to believe that the court desired them to convict and that in case they did in an improper case, the court would thereafter protect his rights, and the jurors were, therefore, much more ready to convict than they would have been but for what the judge said to them and their belief that the court would rectify any error in convicting.
The court in allowing the bill, qualified it as follows: "That four of the jurors who heard the lecture sat upon the trial of the defendant, that the defendant did not exhaust his peremptory challenges on the panel for the week, but voluntarily accepted said four jurors when he had ample challenges to strike them and that it was not made known to the court thereafter that any objectionable juror was taken by the defendant."
In contending that this presents reversible error, appellant cites us to Jones v. State, 51 S.W. Rep., 949; Attaway v. State, 55 S.W. Rep., 45, 41 Tex.Crim. Rep.; Chapman v. State, 57 S.W. Rep., 965, 42 Tex.Crim. Rep.; Murphy v. State, 57 S.W. Rep., 967. We have examined those cases, and think this case and what the judge said is nothing like what was objected to and held error by the judge of the lower court in said cases.
The court in this case gave a full, complete and accurate charge submitting every issue raised and all issues that were raised in appellant's favor. There is no complaint whatever to the charge of the court. Besides this, appellant, in no way in his bill, or otherwise, shows that appellant was injured or could have been injured by what the court
said to the jury, complained of. The mere objections on his part, given above in his bill, by no means and in no way proved themselves. It is not shown that either of the jurors who heard the court and sat as a juror in this case on his voir dire examination or otherwise, in the slightest way indicated that what the judge said, could or did influence him against appellant in this case. He never objected to either of the jurors because of the remarks of the court or otherwise. He voluntarily accepted them, as shown by the court's qualification of his bill. This presents no error.
Appellant made no motion for a continuance. He did file a motion, however, to postpone the trial of the case for ten days to give him an opportunity to examine the list of jurors for the week for the purpose of determining whether he would exercise his peremptory challenges to any of the jurors. The court overruled this and in approving appellant's bill on the subject, explained the matter as follows: "The action and ruling of the court was one that applied to all parties in the court, including this defendant. From experience, the trial court had learned, Hood County being a small county, that interested parties and their friends had been in the habit of getting the jury list as soon as the same was opened, and by diligence and energy, of in some way, disqualifying all of the men on said list who were objectionable to the parties to be tried prior to the sitting of the court; and to prevent this mischief, and with the desire that men drawn by the jury commissioners should not be designedly disqualified by a defendant or his friends before court convened, and out of a desire that a fair and just jury should be had in every criminal trial, the court some years ago established the rule and has rigidly adhered to it down to and including the date of this trial, that the names of the jurors drawn by the jury commissioners should not be given out until the week for which said jurors were to perform service. The court further certifies that the jury list was delivered to counsel for the defendant immediately after the jury for the week had been empaneled by the court, and that counsel were given all the time they asked in which to investigate, confer about and pass on the various jurors on said list. Had counsel desired further time the court would certainly have granted it to them, before they were required to challenge the jurors. But they took all the time that they desired and voluntarily returned to the court their list with their peremptory challenges thereon and expressed no desire whatever for further time to investigate the panel. The court further certifies that only four jurors were procured from the regular panel, such a great number disqualified before the defendant was required to challenge. And the court further certifies that the defendant had more than enough challenges to have challenged each of said four jurors at the time his list was returned to the clerk, but he declined to do so."
Appellant's complaint was that prior to the term of the court the district judge had instructed the clerk and sheriff to permit no one to see said jury list and panel for that week until the court convened and the jury for the week was empaneled; and appellant complained that
he and his attorneys were thus deprived of seeing said list because of the action of the court and the officers in obedience thereto.
It is the policy of the law, clearly shown by the legislation on the subject and our statutes, that fair and impartial and competent jurors shall be selected to serve as jurors for every week of court and for every case that is tried. Among other things the jury commissioners who select the list of jurors for each term of court are required to do so secretly and privately, and each to take an oath that he will not knowingly elect any man as a juryman whom he believes to be unfit and not qualified; that he will not make known to anyone the name of any juryman selected and reported to the court; that he will not, directly or indirectly, converse with anyone selected as a juryman concerning the merits of any case to be tried at the term of the court for which the jurors are selected. The object and purpose of the statute in authorizing the clerk to open the envelope of the lists of jurors selected by the jury commissioners for the week ten to thirty days before court convenes is that the sheriff shall have time to summon them, and that the jurors shall have time to arrange for their attendance. It was not intended thereby to give litigants the opportunity by themselves and their friends to tamper with the jurors who are selected. The judge, in his qualification of appellant's bill on this subject, shows a most commendable object and purpose on his part to preserve fair and impartial jurors and to prevent their being tampered with by litigants, and his action, as he shows, was caused by the necessity therefor. Besides this, his qualification of the bill shows that when appellant did get the list of the jurors he had all time and all opportunity to pass upon the jurors, to exercise his challenges which he claimed he wanted the case postponed ten days to enable him to do. No error whatever is shown in this matter.
In one ground of his motion for new trial he complained that the court erred in refusing him a new trial because of claimed newly discovered evidence. In another ground, on the claimed misconduct of the jury in commenting on appellant's failure to testify. The State contested appellant's motion on both of these grounds. The judgment of the court overruling this motion shows that the court heard evidence thereon and after doing so, overruled the motion. No statement of facts heard on the motion was filed in the court below before the court adjourned for the term. There is a bill of exceptions filed after term time purporting to show this evidence. Under a uniform and unbroken line of decisions of this court such statement, however attempted to be preserved, can not be considered unless filed before the court adjourns. See Graham v. State, 73 Tex.Crim. Rep., 163 S.W. Rep., 726, where some of the cases are cited. So that we can not consider this matter. Even if we could, the evidence shown by said bill positively disproves the alleged misconduct of the jury. As to the newly discovered evidence it, and the record, show that his motion and the evidence supporting it are wholly insufficient to show any error by the lower court.
Clearly he did not bring himself within the rules authorizing the court to grant a new trial on the ground of newly discovered evidence.
It is well established by the decisions of this court that a motion for new trial on this ground is closely scrutinized, and is largely confided to the discretion of the trial court; and the disposition there made of it will not be disturbed on appeal, unless it be apparent that the trial court abused his discretion to the prejudice of appellant. Burns v. State, 12 Texas Crim. App., 269; Bell v. State, 1 Texas Crim. App., 598; Templeton v. State, 5 Texas Crim. App., 398; Shaw v. State, 27 Tex. 750; West v. State, 2 Texas Crim. App., 209; Terry v. State, 3 Texas Crim. App., 236.
It is also well established that in a motion for new trial on this ground it is incumbent on the appellant to satisfy the court (1) that the evidence has come to his knowledge since the former trial; (2) that it was not owing to want of due diligence on his part that it was not discovered and did not come to his knowledge before the trial; (3) that it is competent and material evidence and not merely cumulative, corroborative, or collateral; (4) that it will probably produce a different verdict if a new trial is granted; (5) that it is not simply for the purpose of impeaching a former witness. If the application is defective in establishing any one of these essentials, a new trial should be refused. Fisher v. State, 30 Texas Crim. App., 502, 18 S.W. Rep., 90; West v. State, supra; White v. State, 10 Texas Crim. App., 167; Shaw v. State, supra; Duval v. State, 8 Texas Crim App., 370; Gross v. State, 4 Texas Crim. App., 249; Hutchinson v. State, 6 Texas Crim. App., 468.
The only other ground presented by appellant in his brief, and necessary to be considered, is shown by his bill of exception No. 4. This bill is very meager and from it this court could not possibly tell whether any error had been committed. It merely states that the State's witness Lula Beauchamp, wife of the deceased, was permitted to testify over his objections that the "reason she remained in the McGaughey home after the death of W.L. McGaughey was that the said McGaughey had willed her the property," and that he objected thereto because the same was the opinion and conclusion of the witness and not the legal and proper way of proving a valid will. The court, in approving the bill, explained it by stating, "that the defense was contending that the Beauchamps were trespassers in the McGaughey home and were doing wrong in remaining there, and this witness was permitted to testify that she remained there under a claim of right because Col. W.L. McGaughey had willed her certain interests in the property." Clearly this bill shows no error. If we could go to the statement of facts we would find that this statement by the witness was clearly admissible under the facts of this case. We deem it unnecessary to go into any extended statement of the matter to show this. It is necessary for the bill to show of and within itself such a statement of facts as to show that the testimony was not admissible, and the bill does not do this.
The judgment will be affirmed.
Affirmed.