Johnson v. State , 141 Tex. Crim. 175 ( 1941 )

In connection with her motion for rehearing appellant presents an affidavit of one of her attorneys to the effect that in preparing bill of exception No. 7, relative to alleged misconduct of the jury, the testimony of Juror Ray was omitted through inadvertence and oversight. Appellant requests that the bill of exception be supplemented or amended by referring to a transcript of the testimony of the jurors which appears to have been filed in this court January 27, 1941, which was twelve days after the original opinion was delivered herein. Such transcript of testimony does not appear to have ever been filed in the trial court. Notice of appeal was given in the trial court June 17, 1940. Appellant had ninety days from that date to file in the trial court the testimony adduced upon the motion for new trial. It is manifest that we are not warranted in considering such transcript; for any purpose. As the term implies, the transcript is in question and answer form. No certificate of the trial judge is appended showing the necessity for such form. Hence if it had been timely filed in the court below, we would not be authorized to consider it upon the appeal. See Bierworth v. State, 124 S.W.2d 1004.

It might be added that bill of exception No. 7 cannot be amended or supplemented at this time, the same rule being applicable to bills of exception as has been given application to an attempt to amend or supplement the statement of facts after the record has been filed in this court. We quote from McBride v. State, 246 S.W. 394, as follows:

"The original opinion will disclose that this case was reversed because the statement of facts failed to contain the alleged forged check. The state now files a motion for rehearing, submitting in connection therewith the certificate of the trial judge and the affidavits of the district attorney and the court reporter to the effect that the check with the indorsements thereon was in truth and in fact introduced in evidence.

"The effect of the motion is a request that this court permit the amendment of the statement of facts originally sent to this court. We do not doubt the correctness of the certificate of the trial judge, nor of the affidavits in connection therewith relative to the check actually having been introduced in evidence. Notwithstanding this, we are not permitted to consider them. McConnell v. State, 85 Tex.Crim. R.,212 S.W. 498, is a case directly in point, where the State was attempting to supplement the statement of facts upon the very issue involved in the instant case, but was denied that right. In Gherke v. State, 59 Tex.Crim. R., 128 S.W. 380, the matter was presented from the other angle. In that case the alleged forged check had been omitted from the record, and for some reason appellant was seeking to supply the same. We quote the following from that opinion:

" 'After the statement of facts has been approved and the record made up we know of no rule of practice that will authorize parties to the case to add anything to the statement of facts. Here the appellant complains that the check was introduced in evidence but he omitted to have it copied in the statement of facts and he now asks that this omission be supplied by allowing the statement of facts to be amended so that said check may be incorporated. This cannot be done. If the rule insisted upon in this case should obtain and this court would hold that this omission could be supplied, we would find ourselves confronted with the proposition that statements of facts could be amended after the record reached this court.' "

See, also, Weeks v. State, 113 S.W.2d 532; Rountree v. State, 78 S.W.2d 629; Ex parte Kennedy, 72 S.W.2d 915; Davidson v. State, 4 S.W.2d 74; Hurd v. State, 269 S.W. 439; and Brande v. State, 45 S.W. 17.

Appellant points out in her motion for rehearing that we did not set out in our original opinion all of the testimony of Juror Clark. It is true that we did not undertake to set out such testimony in detail. However, it has been observed, as shown in the original opinion, some of the jurors stated that the appellant was not a good woman. The juror understood these statements to mean, among other things, that she was not a good woman because she had driven an automobile while intoxicated. When we look to bill of exception No. 7, relating to the alleged misconduct of the jury, we find that Juror Clark testified that he heard no one say in "exact words" that appellant was an immoral woman. He said: "I will not say they were not said, but it was in a manner that way, but they did say she ought to be sent to the penitentiary, that she wasn't a good woman." Upon being questioned by counsel for appellant as to whether the juror undersood from the statements he heard that appellant was a "kept woman" he replied, "I don't recall any of them using exactly that word. * * * They said if we could send her to the penitentiary we could get her off the street." Again, the juror was asked by appellant's counsel if there was anything said that led him to believe that appellant was a "kept woman." He replied, "Well, there was so much going on in there I can't get the whole drift of everything * * * Frankly, I don't remember." Again, he testified that he got the impression from what he heard that appellant was an immoral woman. He testified, further, that he would not swear that he gained such impression from any remarks made by the jurors during the discussion of the case. He did not remember, according to his version, the name of any person referring to the appellant as a woman of the type mentioned. Appellant's counsel propounded this question to the juror: "It was from what was said by the jury or some member of the jury that made you arrive at that conclusion?" The juror answered, "Yes, or it might have been my own conclusion." Two jurors testified that they heard no statement by any member of the jury to the effect that appellant was an immoral woman. The remainder of the jurors were in attendance upon the court at the request of the appellant but were not introduced upon the hearing of the motion.

We think it is apparent from the testimony of Juror Clark that he did not place himself in the attitude of testifying positively that any juror referred to appellant as an immoral woman. On the contrary, the testimony in its entirety warranted the conclusion that no such statement was made. It follows from what we have said that we are of opinion the trial judge was warranted in finding that the misconduct complained of in the motion for new trial did not occur. The granting of a new trial for misconduct of the jury is largely in the discretion of the trial court, whose action in refusing a new trial will not be disturbed in the absence of an abuse of such discretion. Johnson v. State, 40 S.W.2d 111. The opinion is expressed that an abuse of discretion is not shown.

We think we made proper dispostion in the original opinion or bill of exception No. 4.

As to bill of exception No. 5, which relates to the argument of the district attorney, and which was discussed in the original opinion, we find that the trial court did not certify that the argument was made; but, on the contrary, he qualifies the bill of exception with the statement that he had "no recollection whatever" of the district attorney having made the argument as set out in the bill. In Clayton v. State, 298 S.W. 601, this court said: "In qualifying this bill, the court states that he is unable to recall any such argument made by the district attorney relative to the grand jury, and that the district attorney denied having made any such statement." The court held in Clayton's Case that the bill, as qualified, was equivalent to no bill at all in that the trial court failed to certify that the argument complained of was actually made. In 4 Texas Jurisprudence, 389, it is said: "A bill of exceptions complaining of the argument or remarks of the attorney for the state must, of itself, manifest the error complained of. Accordingly, it must set out as a fact that the language complained of was used. * * *"

Appellant filed her application for a suspended sentence. She contends that, notwithstanding she failed to except to the charge of the court and brought no bill of exception forward complaining of any omission from the charge, that she was entitled to have the term "good behavior" defined. If it should be conceded that it would have been proper to have given the charge — and this is not conceded — this court is in no position to review the question. Article 658, C. C. P., provides, in part, that before the charge is read to the jury objections thereto shall be made in writing and that the grounds of objection shall be distinctly specified. Article 666, C. C. P., reads, in part, as follows: "All objections to the charge and to the refusal or modification of special charges shall be made at the time of the trial."

We have carefully considered all questions presented in the motion for rehearing and are of opinion that reversible error is not presented.

The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.