Boone v. State, 25326
| Decision Date | 30 May 1951 |
| Docket Number | No. 25326,25326 |
| Citation | 156 Tex.Crim. 327,242 S.W.2d 380 |
| Parties | BOONE v. STATE. |
| Court | Texas Court of Criminal Appeals |
Lawrence Arnim, Houston For appellant.
A. C. Winborn, Crim. Dist. Atty., Ben S. Morris, Asst. Crim. Dist. Atty., Houston, George P. Blackburn, State's Atty., of Austin, for the State.
WOODLEY, Commissioner.
The conviction is for the offense of aggravated assault with a motor vehicle, the jury having assessed the punishment at a fine of $200.
The evidence supports the verdict and need not be discussed.
Appellant filed a motion for new trial claiming misconduct of the jury and incorporated therein and also attached thereto two affidavits of jorors. The bills recite that the trial judge declined to hear the proffered testimony of jorors and overruled the motion because it was not sworn to by appellant or his attorney.
Many decisions of this court may be cited wherein it is said that a motion for new trial on grounds of misconduct of the jury, not verified by the defendant or his counsel, 'is fatally defective,' or words of similar import. See Carruthers v. State, 143 Tex.Cr.R. 45, 156 S.W.2d 988.
In other opinions, it is said that such a motion should be verified; or that an unverified motion is wholly deficient, or that it must be sworn to. See Barboza v. State, 152 Tex.Cr.R. 375, 214 S.W.2d 630; Holloway v. State, 133 Tex.Cr.R. 359, 111 S.W.2d 251; Coleman v. State, 135 Tex.Cr.R. 229, 118 S.W.2d 600; White v. State, 130 Tex.Cr.R. 300, 94 S.W.2d 167; Chapman v. State, 126 Tex.Cr.R. 645, 73 S.W.2d 536.
This court has held also that an affidavit made by appellant or his counsel as to matters occurring in the jury room was necessarily based upon hearsay, and that such an affidavit made on information and belief was insufficient to require the court to hear evidence of the jorors, the affidavit of a juror or some other person in position to know the facts being essential. See Toms v. State, 150 Tex.Cr.R. 264, 200 S.W.2d 174; Hughes v. State, 106 Tex.Cr.R. 550, 293 S.W. 575.
We think that a more accurate statement of the law regarding the necessity for verification of a motion for new trial alleging jury misconduct may be found in Yarborough v. State, 130 Tex.Cr.R. 315, 94 S.W.2d 179, wherein it was said that where the motion for new trial on the ground of jury misconduct is not sworn to, and no affidavits are filed to support it, the trial court is warranted in declining to hear testimony thereon.
The allegation of the motion supported by the affidavit of the...
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Bearden v. State
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