Sullenger v. State

The State urges that this court erred in holding that the juror Meyers was disqualified as shown by appellant's bill No. 1, as held in the original opinion. We have again examined this question and the authorities applicable thereto and are confirmed in our opinion that the holding of this court was correct.

The State contends, and we think properly, that a large discretion is vested in the trial judge in passing upon the qualification of a juror. While this is true, when an appellant's bill, properly allowed and approved by the trial judge, clearly shows that a juror is disqualified, and the appellant made the proper objection and preserved the question by proper bill, then the trial judge could not be held to properly exercise his discretion in holding the juror qualified. If the law is that a juror is disqualified, this court could not sanction the holding of a trial court to the reverse, or in the very face of the law.

The State further seeks to have this court postpone action on its motion for a rehearing in order to enable it to make a motion in the trial court to, in effect, amend said bill of exceptions by now adding thereto all of the testimony of said juror on hisvoir dire examination, claiming that, if now permitted to so add to and amend said bill, the whole examination of said juror will show that the action of the court in holding him qualified was correct, and thereby prevent a reversal. The State does not contend that any fraud or bad faith on the part of the appellant or his attorney was practiced in procuring and the judge allowing and approving said bill. In fact, as we understand, the reverse of this is conceded.

At least since the adoption of our Code of Criminal Procedure in 1856 our statute has been (art. 916): "The effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had until the judgment of the appellate court is received by the court from which the appeal was taken," with certain provisos and exceptions since added not applicable to this question. It has always been held by this court that this statute means what it says and says what it means. It is true that, during the term of court at which a conviction is had, upon the proper motion and service thereof, the court, having the proceedings and the judgment still in his control, can make the record and every part thereof "speak the truth; and if, through mistake or otherwise, a bill of exceptions is shown not to be truthful or to certify facts and matters which did not occur, the court, upon proper notice to the interested parties, has authority to make the matter appear of record as it actually occurred." (Cain v. State, 42 Tex.Crim. Rep..) But this must be while the trial court has jurisdiction and control over its orders and the papers in the cause. It may be that, even after the adjournment of court, upon proper motion and notice, where a fraud has been perpetrated on the court, it would have power and authority to correct it, and this court might recognize such power and authority under such circumstances, but we are not called upon in this case to make any such holding, because no such question arises here.

The State, in its motion, attaches the affidavit of the trial judge, in which he swears the juror Meyers did answer as shown in bill of exceptions No. 1, but he says all of his answers and the questions to him are not included in the bill. If that be true (and we have no question as to the truthfulness of the judge's statement) it was his duty before approving that bill to include all the questions and answers and to so modify and qualify the bill as to make it give all of the facts; and, if he did not do so at the proper time, this court can not sanction such a practice as is asked by the State in this case of delaying a decision here to await the action of the lower court at another term to so amend the bill of exceptions, which was allowed and filed in time as authorized and required by law. We again will state we are not discussing a question where fraud and imposition is charged in procuring a bill. This court has always held that, after bills of exceptions and statements of facts have been properly agreed to and approved and filed in the lower court and the term has expired, they can not be amended nor attacked without showing fraud. It is unnecessary to collate the cases, but as to statement of facts see some of the cases collated in Vernon's C.C.P., in his notes on pages 811-812. The same principle applies to bills of exceptions. See also Howard v. State, 77 Tex.Crim. Rep., 178 S.W. Rep., 506; Bizzell v. State, 72 Tex.Crim. Rep., 162 S.W. Rep., 861; Pye v. State, 71 Tex.Crim. Rep., 154 S.W. Rep., 222; Merrell v. State, 70 S.W. Rep., 979; Lara v. State, 95 S.W. Rep., 1083; Rainey v. State, 20 Texas Crim. App., 484; Lindley v. State, 11 Texas Crim. App., 284.

The motion is overruled.

Overruled.