Day v. State , 120 Tex. Crim. 17 ( 1932 )

In cases where, as in the present instance, the evidence heard on the motion for new trial is conflicting as to the existence of the fact or circumstance upon which the claim of misconduct of the jury is founded, the decision of the trial judge is conclusive upon this court unless from the record it is apparent that the trial judge was clearly wrong. Such is the rule that has prevailed since the beginning of our jurisprudence. Obviously, there is no other guide when the matter comes before the appellate court. The finding of the judge on conflicting evidence is analogous to the verdict of the jury upon the testimony. In each instance the result is binding on the court unless its unsoundness is demonstrated by the record. See Holt v. State, 51 Tex.Crim. Rep.,100 S.W. 156; Douglas v. State, 58 Tex.Crim. Rep.,124 S.W. 933; Lamb v. State, 98 Tex.Crim. Rep.,265 S.W. 1035; Mueller v. State, 119 Tex.Crim. Rep.,43 S.W.2d 589; Johnson v. State, 118 Tex.Crim. Rep.,40 S.W.2d 111; Riles v. State, 117 Tex.Crim. Rep.,38 S.W.2d 342; Elder v. State, 118 Tex.Crim. Rep.,37 S.W.2d 1015; Basham v. State, 118 Tex.Crim. Rep.,42 S.W.2d 261; Vinson v. State, 96 Tex.Crim. Rep., 257 S.W. 905; Dyer v. State, 96 Tex.Crim. Rep., 257 S.W. 902; Manley v. State, 92 Tex.Crim. Rep., 244 S.W. 533; Purcell v. State, 104 Tex.Crim. Rep., 283 S.W. 1072.

In the present instance, the decision of the trial court upon the conflicting evidence before him on the hearing of the motion for new trial is binding upon this court, there being nothing before it showing a breach of the discretion of the trial judge.

The motion for rehearing is overruled.

Overruled.