Citation Numbers: 3 Tex. Ct. App. 213
Judges: White
Filed Date: 7/1/1877
Status: Precedential
Modified Date: 9/3/2021
Appellant was indicted and convicted for the theft of an estray mule, and his imprisonment assessed at eight years in the penitentiary. A careful inspection of the record satisfies us that none of the errors complained of are of such a character as would warrant a reversal of the judgment, and we do not deem it necessary to discuss but two of them.
1. One of the grounds upon which the motion for a new trial was based was that the jury had made up or arrived at their verdict by chance. This branch of the motion is supported by the affidavits of two of the attorneys of defendant, who state that, after the verdict had been returned “ and after court adjourned, they were informed that the jury made up their verdict by chance, whereupon they proceeded to the place where said jury retired to make up their verdict, and there they found the exhibits which are filed with the motion for a new trial in said cause, marked ‘ Exhibits 1, 2, 3,’ etc., up to ‘ 12 and that they also found at the same time and place another paper, which they file herewith, marked ‘ Exhibit C,’ with figures thereon in twelve numbers, showing that the division shown thereon would give eight, the number of years for which defendant was convicted ; and to the best of their judgment, from comparing the handwriting with the handwriting of E. C. Anderson, the foreman of said jury, they believe the said figures were made by said foreman; and from what they have been informed by several parties, and from the place they found the said
These exhibits tended to show that each of the jurymen had written his individual verdict of guilty, and the number of years he was willing to affix as the quantum of the punishment. The numbers of the years thus set down by each juryman were added together, and divided by twelve, giving eight as the quotient. Suppose that we admit, for the sake of the argument, that such evidence was admissible, competent, and conclusive of the fact sought to be established, would a verdict which had been thus arrived at become necessarily vicious and void ?
Our Code of Criminal Procedure provides that new trials in cases of felony shall be granted 1 ‘ where the verdict has been decided by lot, or in any other manner than by a fair expression of opinion by the iurors.” Pasc. Dig., art. 3137, subdiv. 3.
Thompson’s case, which is reported in 8 Gfratt. 637, and which was a trial for murder, is a case directly in point. After conference and discussion, on their retirement in that case, the jury all consented to find the prisoner guilty. It was then agreed to do just what it is alleged the jury in this case did, viz., that each juror should set down the number of years he thought the offense merited, that all the numbers should be added, the aggregate be divided by twelve, and the result be their verdict. Held, that there was no ground for a new trial. The reasons given by the able and distinguished jurist who delivered the opinion in that case (Thompson, J.), for the conclusions arrived at, are to our minds so satisfactory and conclusive that we take the liberty of quoting largely from the decision.
He says : “ Unquestionably every verdict, whether in a civil or criminal case, but more especially in a criminal case, should be the result of reason, deliberation, and honest
“But, on the other hand, when a jury has deliberated, and made up and returned their unanimous verdict—a verdict neither in conflict with the law or the evidence— it is due alike to public and private interests, and to the sanctity of, and a becoming respect for, the jury trial, that courts should not upon trivial grounds interfere or meddle with that verdict. The power to award new trials should be exercised with caution and circumspection, and only for good and sufficient cause. It is certainly a desideratum, both to the parties and to the public, that juries should agree upon their verdicts, if possible, and as speedily as practicable. * * * So expedient was it deemed in the early periods of English jurisprudence, that consent in a verdict was even extorted from the jury under the pains and penalties of hunger and thirst, and other privations, and of being carted round the circuit with the judge, and held in a sort of duress until they agreed. If it be sound policy to end litigation by the rendition of a verdict as soon as practicable consistently with the purity, impartiality, and integrity of the jury trial, though we may very properly nullify a verdict which was the result of a lottery, we should certainly be running counter to that policy to place a verdict like this in the same category. There is no real analogy between the two cases ; or, if any, but seeming and remote.” 8 Gratt. 637.
The authorities, however, make a distinction between the
The Supreme Court of Massachusetts say: “ The impropriety consists in the agreement to he hound hy the result. No one was bound by the result. And, if the average was finally adopted as the amount of the verdict, it was after a comparison of the different views of all, after due deliberation and full discussion of the whole subject, and by reason of reciprocal concessions among the different jurors. It appears to have been freely assented to by all, and we can perceive no impropriety in the mode of reaching the result.” Dorr v. Fenno, 12 Pick. 521. See, also, Dunn v. Hall, 8 Black, 32; Coperthwaite v. Jones, 2 Dall. 55. And in Chandler v. Barker, where the verdict was obtained in the same manner, and the jury were polled and each juror answered that it was his verdict, the court refused to grant a new trial. 2 Harr. 387; Grinnell v. Phillips, 1 Mass. 530; Heath v. Conway, 1 Bibb, 398. In all the cases above cited and referred to, the verdicts were arrived at as the case we are considering.
1. “The jury are the sole judges of the evidence, and they may receive or reject any evidence upon the grounds of credibility.”
2. “ That the presumption of innocence of the defendant must be overthrown by proof made by credible witnesses or circumstances before they can find him guilty.”
These charges the court refused to give, and, we think, properly. It is not the business of the court to tell the jury either to accept or reject testimony which has been adduced before them. The province of the court is ordinarily limited to passing upon the legality and competency of the evidence offered. Tollett v. The State, 44 Texas, 97. After he has performed that duty, and permitted its introduction, our statute says “ the jury are the exclusive judges of the facts in every criminal cause.” Pasc. Dig., art. 3058. And again : “ The jury, in all cases, are the exclusive judges of the facts proved and of the weight to be given to the testimony, except where it is provided by law that proof of any particular fact is to be taken as either conclusive or presumptive proof of the existence of another fact, or where the law directs that a certain degree of weight is attached to a certain species of evidence.” Pasc. Dig., art. 3108.
And though a witness may be impeached for truth and veracity, by others swearing they would not believe him upon oath, still it is a matter for the jury to decide and determine for themselves how far they will credit his state
And, as was said by this court in Thompson v. The State, “ it has been the unvarying practice of our Supreme Court not to disturb the verdict of the jury if at the trial there was sufficient evidence to support it. This court will adhere to the same rule, and only in cases where the verdict appears to be wrong, oppressive, and unjust will the verdict be disturbed.” 1 Texas Ct. App. 57.
There is nothing in the record of this case which requires or constrains us to interfere with the judgment of the lower court, and it is, therefore, affirmed.
Affirmed.