Parker v. State , 33 Tex. Crim. 111 ( 1894 )

ON MOTION FOR REHEARING. Appellant and Rosales were jointly indicted for this murder. Each moved, on proper affidavit, for a severance, asking that the other should be tried first. This motion was made under article 669a, Code of Criminal Procedure. Not agreeing upon the order in which they should be tried, the court directed that appellant be tried first. In this there was no error. The action of the court was in conformity to the statute (article 670). The court below is not presumed to know the facts of the case when passing upon this matter; not presumed to know that there was not sufficient evidence to convict Rosales, or that the evidence was stronger against appellant than Rosales.

In closing the argument for the State, counsel referred "in impassioned language to the pity that the jury owed to the deceased's family, instead of to the defendant, and urged the jury to bring in a verdict in support of the indictment; and after said argument, and before the charge of the court was given, the thronged audience applauded said argument, by the clapping of their hands and stamping of their feet, in the presence and hearing of the court and jury." The court, it seems, of its own motion promptly suppressed the demonstrations, and reprimanded those applauding. Notwithstanding this prompt action of the court, counsel for appellant contend that this court should, because of such demonstrations on the part of the audience, reverse the judgment. There was no motion to change the venue of this case. There was no complaint that a fair trial could not be had in that county. If such a motion had been made, such conduct could have been looked to in passing upon the motion for new trial based upon the supposed error in overruling the motion for change of venue. But to make a rule that a judgment will be reversed because of such applauding in all cases, though promptly suppressed and reprimanded, would be very dangerous indeed. A person with death or imprisonment before him would not hesitate to have his friends ready and willing to applaud counsel for the State, with the risk of being sent to jail for contempt. This could all be arranged and executed, and the court could not ascertain the fraud by learning that the applause was instigated by the friends of the accused. We have very carefully examined the evidence in this case, and believe it establishes the guilt of appellant of murder of the first degree with reasonable certainty.

Now, we desire to state, (1) that this court can 'not pass upon the credibility of' witnesses; (2) that if the testimony of the boy (Bustamente) is true, appellant shot deceased without cause. In fact, appellant's version of the facts attending the homicide is absolutely false, and we can not reverse this judgment because the evidence fails to support the verdict.

In amended motion for rehearing, we find ex parte affidavits to the effect that the verdict of the jury was returned after the term of the court had expired. The record contains no such matter. Can we consider these affidavits? We can not. If in fact the verdict was returned after the term of court had expired, it and the judgment rendered thereon are null and void; that is, no verdict, and consequently no judgment. Now, if the sentence of the court upon a judgment entered upon a verdict thus returned should be attempted to be enforced, the defendant would have his remedy by writ of habeas corpus. On the trial of the writ, however, the State would have the right to be heard on the issue as to whether the verdict in fact was returned after the term of court had expired.

The motion for rehearing is refused.

Rehearing refused.