Joe Elder v. State

Conviction is for assault with intent to murder Lena Elder, punishment being assessed at six years in the penitentiary.

The injured party was appellant's wife. They had not been living together for some time. On the occasion of the assault appellant came to the house where his wife and children were living and apparently without any cause commenced to beat his wife with his fist and with a piece of iron referred to as an "angle iron" from a windmill. At the time of the assault and prior thereto he threatened to kill his wife. During the time he was striking her the children interfered to the extent of lessening the force of the blows directed at their mother by appellant. We deem the evidence sufficient to support the verdict.

Appellant had no attorney representing him during the trial, but secured the services of one who filed a motion for new trial in which it was averred that he was confined in jail, but that his father and a friend had been requested to secure Mr. Lewis to represent appellant; that on the morning of the day the case was called for trial they sought Mr. Lewis but found he was in another county engaged in the trial of a case there; it was further averred in said motion that he was not able to secure other counsel. The State controverted the motion by a sworn answer of the District Attorney setting up the following facts. Appellant was indicted in September, 1935, and when the case was called for trial at that term of court appellant was not present, but his bond was forfeited. Appellant was re-arrested and placed in jail at Lampasas. The December term of court convened on the 2nd day of December, and on the fourth appellant was notified that the case would be called for trial on the ninth. When the case was called for trial appellant stated to the court that he was being represented by Mr. Lewis who was then in Burnet County. The court told appellant to communicate with Mr. Lewis, and that the court would allow appellant time for his attorney to return from Burnet. Mr. Lewis advised the district attorney by telephone that he was not representing appellant, and had not been requested by appellant nor anyone acting for him to represent appellant in the trial. After receiving this information the court put appellant to trial. The record fails to show that appellant made any effort to secure any other attorney. The offense charged against appellant was not of that character which made it the duty of the court to appoint an attorney to represent appellant. We perceive no error on the court's part under the circumstances.

It was further averred in the motion for new trial that the jury was guilty of misconduct in arriving at their verdict. The motion is not verified. This has been held necessary where misconduct of the jury is alleged in the motion. Bryant v. State, 69 Tex.Crim. Rep., 153 S.W. 1156; Dodson v. State, 92 Tex.Crim. Rep., 244 S.W. 601; Faulkner v. State, 115 Tex.Crim. Rep., 28 S.W.2d 551. Appellant does attach to the motion attempting to support the averment of the jury's misconduct the affidavit of one of the jurors. This affidavit appears to have been taken by counsel who represented appellant in the hearing upon the motion. Such affidavit cannot be considered. See Siebe v. State, 92 Tex.Crim. Rep.,244 S.W. 1013, and authorities there cited. However, if the motion for new trial and the affidavit supporting it were not subject to the defects pointed out no basis for reversal would be shown predicated on claimed misconduct of the jury. The State controverted the motion for new trial upon the point named, and in support of the controversy attached an affidavit of the same juror whose affidavit is attached to appellant's motion. The court heard evidence upon the question and appellant failed to support his averment of misconduct.

It has been suggested that there is no affirmative showing that the court complied with that part of Art. 776, C. C. P., which reads as follows:

"* * * When the defendant has no counsel, the court shall inform the defendant of his right to make such application (for suspended sentence), and the court shall appoint counsel to prepare and present same if desired by defendant.* * *"

It is observed that nowhere does appellant complain in his motion for new trial that the court failed to observe such statute. There is no showing by appellant that he desired a suspended sentence, or that no legal impediment — a prior conviction for a felony — prevented the jury from recommending a suspended sentence. As was said in Holdman v. State,94 Tex. Crim. 433, 251 S.W. 218:

"In support of the judgment, however, the presumption obtains that the court did not ignore it — (the statute) and to overturn this presumption the contrary must affirmatively appear upon appeal."

The action of this court cannot properly turn upon the point that the record fails to show a compliance with the statute, but upon a failure of the record to affirmatively show that the statute was ignored. Until this appears the presumption is in favor of the regularity of procedure in accord with the statute. So far as the record here shows the trial court may have advised appellant of his right to apply for a suspended sentence, and appellant may not have wished to do so, or it may be that appellant had been formerly convicted of a felony in which event such legal impediment would have stood in the way of such application. The Holdman case (supra) is direct authority supporting the presumption that the trial court did not ignore the statute, and such presumption prevails until the contrary appears.

The State's motion for rehearing is granted, our former opinion reversing this case is withdrawn, having been based upon a misapprehension of the record, and the judgment of the trial court is now affirmed.

Affirmed.

MORROW, P. J., absent.

ON MOTION FOR REHEARING.