Vyvial v. State

10 S.W.2d 83, 111 Tex. Crim. 111, 1928 Tex. Crim. App. LEXIS 781

• Court: Court of Criminal Appeals of Texas
• Decided: October 3, 1928
• Docket: No. 11875.
• Status: Published

Opinions

MORROW, Presiding Judge.

The offense is assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of twelve years.

No statement of facts accompanies the record. But one matter is presented for review, which is embraced in Bill of Exceptions No. 1. It appears therefrom that in the motion for new trial, the appellant averred that several members of the jury who rendered the verdict had on voir dire declared themselves without prejudice against the appellant or his case. In subdivision four of the motion the appellant avers that he was reliably informed and “has reason to believe and does believe” that juror Blaschke had stated to his fellows in the jury room that the appellant had been charged with the offense of murder, and that said juror urged that charge against the appellant to enhance the penalty. In subdivision six there is an allegation that juror Appelt made a statement to his fellows that the appellant had resisted arrest, and in making the attempt had assaulted an officer. In subdivision seven it is charged that the jury as a whole discussed the general reputation of the appellant as a peaceable citizen, and in subdivision eight it is charged that the jurors named above declared to their fellows that the appellant was a violent and dangerous man, and had been charged with murder; that one of the jurors, who the appellant was unable to name, had stated to his fellows that the appellant had resisted arrest and attempted to kill a deputy sheriff. In his prayer attached to the motion the appellant asked that the trial of the motion be set for rehearing and that the court cause process to issue for each of the jurors; that he be permitted to have them sworn and testify relative to the matters therein set forth in support of the allegations contained in the motion. The State’s Attorney, in a motion and by way of exception to the motion for new trial, sought to have certain provisions stricken out upon the ground that the averments were made on alleged information which was not disclosed and upon reason to believe which was not set ou't. In qualifying the bill, the judge who presided at the trial made in substance the following statement: That before the motion was heard, all of the jurors who tried the case were brought into court by process; that the appellant’s attorney had opportunity to privately examine each of the jurors; that an exception to the motion was sustained and no request for the privilege of amendment was made by the appellant; that no statement was made by the defendant or his attorney setting forth the testimony which was expected from any of the jurors, all of whom were present.

The proceeding is somewhat novel and irregular. It appears, however, that the appellant was unable to make a specific statement of any fact upon which he relied for a new trial. His averments were upon information and belief but neither the informant nor the basis of belief is set forth. It appears from the motion that he expected to support same by the jurors who tried the case. As stated above, thfcy were all brought into court and after talking to them, it is to be inferred that no information or testimony was gathered from any of the jurors which would have been pertinent to the averments of the motion for new trial. If in his conference with the jurors any fact was disclosed which was deemed by him pertinent or material, it would have been incumbent upon him, in order to invoke an intelligible review, to either amend the motion setting up the fact or to set forth in his bill of exceptions the evidence which he expected to adduce. In view of the qualification, we are unable to sustain the appellant’s complaint of the ruling of the court.

The judgment is affirmed.

Affirmed.