Brennan v. State

• Decision Date: 01 January 1870
• Citation: 33 Tex. 266
• Parties: JAMES BRENNAN v. THE STATE.
• Court: Texas Supreme Court

33 Tex. 266

JAMES BRENNAN

v.THE STATE.

Supreme Court of Texas.

1870.

1. No case has yet occurred in this state wherein the courts have tolerated affidavits of jurors to impeach their verdict. If ever allowed, the case must be an extreme one and the necessity imperative. They were properly disallowed in the present case, though the charge was murder and the conviction was for manslaughter.

2. A juror in a murder case stated on his voir dire that he was a freeholder in the state. Being found guilty of manslaughter, the prisoner moved for a new trial, alleging that the juror was not a freeholder nor qualified to serve on the jury, and offered to prove the allegation by the juror himself. Held, that the proof offered was properly rejected, and the motion rightly overruled.

3. It is no objection to jurors summoned on a special venire, that they belonged to the regular panel for the term.

4. (On motion for a rehearing.) The court intimates that notwithstanding a juror in a criminal cause was neither a freeholder nor a householder, the jury was not thereby invalidated.

5. The code of criminal procedure (article 2491, Pas. Dig.) reverses the rule of the common law respecting the construction of its provisions, and requires that they be liberally construed, for the prevention and punishment of crime.

APPEAL from criminal court of Galveston county. Tried below before the Hon. W. R. Fayle.

The appellant was tried at the March term, 1869, for the murder of Edward W. Kemp, and was found guilty of manslaughter. The jury assessed his punishment at five years in the penitentiary.

He moved for a new trial on the grounds substantially disclosed in the opinion, and which, he alleged, had not come to his knowledge until after his trial. The motion was overruled, and he appealed.

McLemore & Hume, for the appellant, cited Pas. Dig. arts. 3040 to 3044; 2 Graham & Waterman, New Trials, 221, 471; State v. Babcock, 1 Conn. 401; McKinley v. Smith, Hardin, 167; Peirce v. Bush, 3 Bibb, 347;Herndon v. Bradshaw, 4 Bibb, 45;Vance v. Haslett, 4 Bibb, 191;Hanks v. The State, 21 Tex. 526;Givens v. State, 6 Tex. 343;McGee v. Shaffer, 9 Tex. 24. (The argument of these counsel will be found further on, being addressed to their motion for a rehearing).

E. B. Turner, for the state, cited Burns v. Payne, 8 Tex. 159;Kilgore v. Jordon, 17 Tex. 341;Mason v. Russell, 1 Tex. 726;Little v. Birdwell, 21 Tex. 613; Thomas v. Zushlag, 25 Tex. 225; Shaw v. State, 27 Tex. 758;Johnson v. State, 27 Tex. 758.

WALKER, J.

We have carefully examined the record in this case, and given due attention to the argument and brief of appellant's counsel, as well as those of the attorney general.

The points most insisted on by counsel for appellant are, first, that R. R. Farish, the foreman of the jury that tried appellant, was not a legally qualified juror. Second. That several of the persons were of the regular jury of the term, and were therefore not legally qualified to sit upon the jury. Third. That the verdict was contrary to law and evidence.

The record shows that R. R. Farish had been interrogated as to his qualifications to serve on the jury, and had answered the questions satisfactorily, and especially as to being a freeholder.

The appellant's counsel offered in support of their motion for a new trial to prove by the juror that he was neither a householder in the county nor a freeholder in the state.

In Johnson v. The State, 27 Tex. 758, the court say: “No case has yet occurred in this state wherein the courts have tolerated affidavits of jurors made to impeach their verdict; if ever admissible, they can only be allowed in an extreme case and under an imperative necessity for the accomplishment of justice.” See also Shaw v. The State, 27 Tex. 750, and numerous antecedent cases in the Texas reports. There is a case excepted by statute, where the jurors misbehave in any manner in their retirement.

We see no force in the objection that some of the jurors were regular jurors, and know of no rule or principle of law which would forbid their being summoned on the special venire, should the court see proper to excuse them from the regular panel. This is even a matter of necessity in some of the frontier counties, where it is difficult to obtain the requisite number of qualified jurors.

Nothing improper appears in the charge of the court, nor is it even objected to. The verdict is in strict accordance with the law, if the facts are sufficient to support it. The evidence is very conflicting; no two of the witnesses agree in their statements as to the most material facts.

The surgeon, whose evidence has been liberally commented on, is not consistent with himself. On his examination-in-chief he says deceased died from the wound; on cross-examination he states that he died from inflammation caused by the suture, which had been unskillfully performed; that the wound was of that class not generally considered mortal. He had treated seven such wounds and had healed four, but three had died--not, of course, from unskillful sutures. By this evidence a man thus wounded would have four chances to recover and three to die in the hands of a surgeon of the skill of the witness. The law cannot act on such testimony; we must have something mere certain and tangible.

The evidence was so conflicting on the trial that we would not undertake to say that the jury have given it a wrong solution. The witnesses were, several of them, of the crowd described by one of their number--as a drinking crowd, ““all talking fighting talk,” urging on a fight.

The only palpable injustice done, so far as we can see, is that all those who were thus particeps criminis in this transaction, are not in a like position with Brennan. There is certainly a possibility that he may have been wrongly convicted, but it rests entirely upon the evidence whether it be so or not, and of this the jury were the best judges. The judgment of the court below is affirmed and cause remanded.

Affirmed.

McLemore & Hume, moved for a rehearing. They discussed the evidence and other questions in the case, and argued the points decided at some length, as follows: It is submitted that the reasoning of the court, on the hypothesis that the introduction of Farish to show his disqualification, would result in permitting jurors to impeach their verdict, is erroneous. Webster defines the meaning of “impeach” thus: “To accuse; to charge with a crime or misdemeanor; to charge with impropriety; to call in question, as to impeach one's motives or conduct.” Certainly Farish was not called to do either of these things, when it was simply proposed to show by him the existence of a fact in pais out of the record, and with no possible relevancy to his motives or conduct in the case, and having no bearing whatever upon the correctness or error of the verdict he had rendered! In the two cases cited by the court to sustain this view, we say, with all respect, the question at bar was not involved. In Johnson v. The State, 27 Tex. 758, there was an attempt made, on motion for new trial, to prove by three jurymen that they misconstrued the law given in the charge of the court. This court, on that state of facts, decided wisely enough that it was an effort by the jurymen to impeach, that is, “to call in question” the justice and right, under the evidence, of a verdict deliberately rendered by them, and they could not be permitted thus to stultify themselves. In Shaw v. The State, there was an attempt to secure a new trial, on the ground that one of the jurors stated on his voir dire that he had not heard the testimony before the magistrate in the case, while the fact was he had been present at that time, but it is not stated in the affidavit that the fact was unknown to the prisoner on the trial, or that he had been misled by the jurors' answers.

The court very properly ruled the ground not well taken, and stated that if there had been a false statement, and the fact was unknown before verdict, the point should have been saved by bill of exceptions, setting forth the evidence and what occurred on the trial. But surely this case is not authority in the most remote degree upon the point under discussion here. In Little v. Birdwell, cited by the attorney general, a new trial was sought and refused, because a paper which had been read in evidence was by mistake withheld from the jury on their retirement, and had it been in their hands a different verdict would have been rendered. This is supported by affidavits of jurors. This court says, in that case, that it is an attempt by jurors to impeach their verdict, and cannot be allowed. 21 Tex. 612.

Of a like character is the case of Kilgore v. Jordan. 17 Tex. 341. There a motion was made for new trial, on the ground, among others, that the jury misapprehended the law, supported by the affidavits of two of the jurors, to the effect that they had found for the plaintiff on the ground that there was evidence wrongly understood, and applied by them to the law of the case. The motion was overruled, and on assignment of that order as error this court say the objection will not avail;...