Pickett v. State

Appellant was convicted in the District Court of Bell County on a charge of rape, and his punishment assessed at five years confinement in the penitentiary.

The record comes to us without a statement of facts or bill of exceptions. Appellant seeks a reversal, as he sought a new trial, on the ground, as stated by him, "that he has not had a fair and impartial trial in this cause on account of the misconduct of the jury which rendered the verdict in this case against him, in this, that after retiring to consider their verdict and in consideration of the case against this defendant, the jury alluded to, mentioned, commented upon and discussed the fact that this defendant failed to take the stand and testify in his own behalf on the trial of this case, and considered such failure to testify as a circumstance against him to the injury of this defendant. The defendant says that he does not know and is unable to state the extent of the discussion of the fact that he refused to testify in his own behalf in the amount of consideration given it by the jury, except as appears from the affidavits of W.N. Kelly and members of said jury." The affidavit of appellant was attached to the motion. The motion concludes with the following prayer: "Wherefore the defendant prays that the jurors be subpoenaed to testify concerning the said matter on hearing of this motion and that defendant be granted a new trial in this case." The affidavit of the juror Kelly was to the effect "that the defendant did not take the stand and testify in his own behalf on the trial of said cause; and that the fact of his failure to testify on said trial was referred to, mentioned and discussed by a number of the jury during their consideration of this case and before their verdict was reached; that I am unable to recall what member of the jury mentioned the fact of defendant's failure to testify in his own behalf, or to state what jurors spoke of it; but I am positive that the fact of defendant's failure to testify was mentioned and discussed among the jurors in their consideration of the case." This motion was filed on the 28th day of December, 1908. The allegations contained in this motion were denied by the district attorney as follows: "Now comes the district attorney and denies the allegations set up by the defendant, John Pickett, in his motion for a new trial herein and says the said allegations are not true in whole or in part, and demands strict proof thereof. Wherefore he asks judgment, and that said motion be denied and refused, and he will ever pray. D.R. Pendleton, District Attorney, 27th Judicial District of Texas."

1. It will be noticed that the affidavit attached to the motion is in very general terms, does not state any particular fact that was mentioned by any juror, the name of any juror discussing the failure of appellant to testify, or when or in what connection the matter was mentioned, if at all. It may well be doubted whether in view of the very general statement of this juror the court would in any event have been required to grant a new trial. We have not infrequently decided that it is not every reference or casual allusion by the jury to the failure of a defendant to testify that would require the court to grant a new trial. See Smith v. State, 52 Tex.Crim. Rep., 106 S.W. Rep., 1161, and Arnwine v. State, 54 Tex.Crim. Rep., 114 S.W. Rep., 796, where this subject is fully discussed. In any event, however, it is certain that, as here presented, we would not be authorized to reverse the judgment for the error alleged. In appellant's motion he makes the issue that he was deprived of a fair trial by reason of certain facts therein stated, in support of which motion he attaches the affidavit of the juror Kelly. This motion and the grounds thereof are denied by the district attorney in his official capacity and under the sanction and solemnity of his official oath. It will be noted further that appellant's counsel requested that the jurors be summoned and the matter inquired into. Here the matter rests. It is to be presumed that if urged, this matter would have been inquired into. In the absence of a bill of exception or anything to the contrary, it is to be assumed that it was inquired into, and that the facts alleged in the motion were demonstrated to be untrue. Article 821 of the Code of Criminal Procedure, referring to motions for a new trial, is as follows: "The State may take issue with the defendant upon the truth of the causes set forth in the motion for a new trial, and in such case the judge shall hear evidence by affidavit or otherwise, and determine the issue." And it has been held in many cases that counter-affidavits are receivable on motion for new trial. Dignowitty v. State, 17 Tex. 521 [17 Tex. 521]; Hyde v. State, 16 Tex. 445; Reynolds v. State, 7 Texas Crim. App., 516. It has also been held in many cases that under the terms of this statute, by affidavit or otherwise, the court is authorized to receive oral proof. Childs v. State, 10 Texas Crim. App., 183; Reynolds v. State, 7 Texas Crim. App., 516; Rucker v. State, 7 Texas Crim. App., 549; Wilson v. State, 17 Texas Crim. App., 525; Richardson v. State, 28 Texas Crim. App., 216; Ulrich v. State, 30 Texas Crim. App., 61. While it is doubtless true that in the absence of any contest, that if the affidavit of the juror in its language had been sufficient that the court should grant a new trial, it does not occur to us that the mere fact that appellant files a motion of this sort, that notwithstanding the denial under oath of the district attorney, he is, in the absence of further showing, entitled to a new trial, and certainly it is not true that where, as in this case, he seeks and asks for an investigation, that he is on the mere charge entitled to a reversal in the absence of any showing by bill of exceptions or otherwise of any injustice or injury done him. In the absence of statement of facts this is the only question we can review, and as we have stated, it seems to be without merit. It is therefore ordered that the judgment be and the same is hereby in all things affirmed.

Affirmed.