Scrivnor v. State

In this case, the opinion on motion for rehearing makes evident that in the judgment of this court, after an examination in every detail of the evidence heard in the trial court upon the motion for new trial, that as to the misconduct of the jury the evidence was conflicting. In the present motion, this is apparently conceded, counsel stating that on the question involved the jury men in their testimony were divided six to five.

The position of the appellant's counsel is thus quoted from the motion: "We submit that we are not contravening the provisions of Branch's Ann. Tex. P. C., section 574, in asking this Court to grant a motion for rehearing for the reason that it is apparent that the decision of the trial judge in holding as above set forth was clearly wrong in the face of the evidence, and we believe that this Court will so conclude upon a careful investigation of the evidence of the jurors as cited above."

Touching the subject, the following quotation from the recent case of Day v. State, 120 Tex.Crim. Rep.,48 S.W.2d 266, and supported by the long list of precedents cited, is taken:

"In cases where, as in the present instance, the evidence heard on the motion for new trial is conflicting as to the existence of the fact or circumstance upon which the claim of misconduct of the jury is founded, the decision of the trial judge is conclusive upon this court unless from the record it is apparent that the trial judge was clearly wrong. Such is the rule that has prevailed since the beginning of our jurisprudence. Obviously, there is no other guide when the matter comes before the appellate court. The finding of the judge on conflicting evidence is analogous to the verdict of the jury upon the testimony. In each instance the result is binding on the court unless its unsoundness is demonstrated by the record."

The original opinion and the opinion on motion for rehearing delivered by this court demonstrate that the action of the trial court in denying the motion for new trial was not clearly wrong but was supported by approved principles of practice of long standing.

Aside, however, from the discussion heretofore made, the affirmance of the judgment is justified for another reason which has often been asserted, the soundness of which has not been seriously questioned and which is deemed applicable to the present appeal. A statement of it is made in the opinion of this court written by Judge Ramsey in the case of Smith v. State, 52 Tex.Crim. Rep., see page 351, 106 S.W. 1161, 1165, from which the following quotation is taken: "We think the true rule is that where, as in this case, the testimony supports the verdict, and the charge of the court properly submits the case to the jury, that a verdict ought not be set aside for every incidental and casual mention of a former trial or a former conviction, and that in no case should it be set aside in a case tried according to law where the conviction is supported by the testimony, unless the court may fairly and reasonably see in the light of all the circumstances that such reference and discussion did or might have prejudiced the appellant's case. It is possible that there is some language in some of the decisions not wholly in accord with the views here expressed, but, on full consideration, this is believed to be the correct rule, and tested by this rule we believe appellant is without just ground of complaint."

The sanction of this rule has been given by this court in many cases, among them the following: Fox v. State,53 Tex. Crim. 150, 109 S.W. 370; Hallmark v. State,89 Tex. Crim. 257, 230 S.W. 697; Smith v. State, 52 Tex. Crim. 344,106 S.W. 1161; Wells v. State, 111 Tex. Crim. 21,10 S.W.2d 991; Ross v. State, 98 Tex. Crim. 567,267 S.W. 499; Carter v. State, 102 Tex.Crim. Rep.,278 S.W. 840; Meador v. State, 113 Tex.Crim. Rep.,23 S.W.2d 382; Briggs v. State, 112 Tex.Crim. Rep.,16 S.W.2d 1074; Helms v. State, 112 Tex.Crim. Rep.,17 S.W.2d 813.

There being no vice in the procedure and no question touching the sufficiency of the evidence to establish the guilt of the accused, the penalty assessed against the appellant upon the present trial seems incompatible with the contention that in assessing the penalty of ten years' confinement in the penitentiary the jurors were influenced, or the appellant was prejudiced, by the reference to the penalty assessed in his previous trial or by that of Martin, his coprincipal.

We take occasion to again call attention of counsel for appellant and of the Bar generally to the remarks made in the case of Webb v. State, 110 Tex.Crim. Rep.,7 S.W.2d 562, 9 S.W.2d 335, with reference to second motions for rehearing.

The application to file a second motion for rehearing is denied.

Denied.