Hughes v. State , 106 Tex. Crim. 550 ( 1927 )

In paragraph 6 of his motion for new trial there is contained an averment that during their deliberation the jurors discussed the appellant's failure to testify, and members of the jury stated that the appellant was of bad character. The motion for new trial is verified by the affidavit of the appellant but not otherwise supported. In the order overruling the motion for new trial, there is no recital that evidence was heard. Appellant insists that in that state of the record, on appeal, it is the duty of the appellate court to reverse the judgment. It is stated in Art. 757, C. C. P., 1925, that:

"The state may take issue with the defendant upon the truth of any cause 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."

It has been held that to take issue under this statute a written pleading is not required. See Cade v. State, 96 Tex. Crim. 523.

The grounds upon which a motion for new trial may be granted are embraced in Arts. 752-757, C. C. P., 1925. It is declared that the grounds shall be distinctly set forth in writing, and where one of the grounds is newly discovered evidence, the practice in civil cases, which requires the verification of the motion, must be followed. See Shaw v. State, 27 Tex. Rep. 755; Glasscock v. Commissioner, 3 Tex. Rep. 51; Koontz v. State, 41 Tex. Rep. 570; White v. State, 10 Tex.Crim. Rep.; Gray v. State, 144 S.W. 284. There is no specific statute requiring that in all instances averments of facts dehors the record, when set up in the motion for new trial, must be verified. As to the necessity for such a procedure there seems to be a conflict of authority. See Hicks v. State, 75 Tex. Crim. 461 (both majority and minority opinions). It has also been said that a motion for new trial verified by the affidavit of the accused is but a pleading. See Lopez v. State, 84 Tex. Crim. 422; Noble v. State, 98 Tex.Crim. Rep.; Rumfield v. State, 98 Tex.Crim. Rep.. Upon this subject, however, the decisions are not harmonious. See Harris v. State, 17 Tex.Crim. App. 559; Stanley v. State, 16 Tex.Crim. App. 392.

It has been said that where the record on appeal is void of evidence, that testimony other than that attached to the motion for new trial was heard, the presumption will be indulged that the court considered the affidavits which were made a part of the motion. See Cade v. State, 96 Tex.Crim. Rep.; Collins v. State, 95 Tex.Crim. Rep.; Washington v. State, 86 Tex. Crim. 652; Brown v. State, 274 S.W. 588; Redford v. State, 98 Tex.Crim. Rep..

It is believed that the rule is none of the precedents mentioned control in the present instance for the reason that the appellant's affidavit verifying the motion for new trial sets up no detailed fact within his knowledge. It simply states his conclusion that certain things transpired in the jury room while the jury was in retirement deliberating upon his case. It is plain that these are matters about which he could not have testified if an oral inquiry had been made touching the merits of his motion. On the face of the motion, the averments are but hearsay. We are of the opinion, therefore, that in affirming the judgment upon the record before us, no violence was done to the rules of practice.

The motion for rehearing is overruled.

Overruled.