Hicks v. State

• Decision Date: 26 November 1913
• Docket Number: (No. 2679.)
• Parties: HICKS v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W. 755

HICKS v. STATE.

(No. 2679.)

Court of Criminal Appeals of Texas.

November 26, 1913.

On Motion for Rehearing, March 4, 1914.

Dissenting Opinion December 21, 1914.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Caldwell County; Frank S. Roberts, Judge.

Mannie Hicks was convicted of murder in the second degree, and he appeals. Affirmed.

E. B. Coopwood and O. Ellis, Jr., both of Lockhart, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Upon a charge of murder appellant was convicted of murder in the second degree, and his punishment fixed at 19 years' confinement in the penitentiary.

The conviction occurred on April 11, 1913. On April 15th appellant filed his amended motion, in lieu of his original, for a new trial, the last ground of which is as follows:

"Because the jury arrived at their verdict by lot; that is to say, the defendant is advised and believes and the facts are that the verdict of the jury was arrived at in this manner: The 12 jurors placed on a sheet of paper the number of years he was in favor of confining the defendant in the penitentiary, then adding the several figures, then divided the whole sum by 12, thus arriving at the 19 years' imprisonment for the defendant; the jurors having agreed in advance to abide by the result of such lot. The defendant asks the court to hear testimony as to how the jury arrived at their verdict, and that a new trial be granted."

There appears in the record what would be appellant's bill of exception No. 3 on this point if it had been allowed by the court. But the court refused to approve it and stated that he did so for the reason that a bill involving the same matter was presented during the term of said court. Then there appears in the record what must be this bill referred to by the court. The court qualified that bill by stating:

"No issue as to the misconduct of the jury having been submitted to the court, the jury was not permitted to be sworn and impeach its verdict which appeared not impartial or unfair under all of the facts of the case."

This bill would show that when appellant's said amended motion for new trial was heard on April 15, 1913, appellant had eight members of the jury in open court and asked permission to swear them, "by whom the defendant's attorneys stated they believed, and said they had been so informed, they could prove that the verdict of the jury was arrived at in this manner: That the 12 jurors agreed in advance that each man set down the number of years he was in favor putting the defendant in the penitentiary for, to add up the 12 sums, and to divide the total sum by 12, and that each of the jurors agreed to be bound by the result obtained; that each juror did put the amount or number of years he was in favor of on a piece of paper, and all of the different numbers of years were added together, and were then divided by 12, and the result was 19 years; and that the jury then affixed his punishment in their verdict at 19 years in the penitentiary." From all that appears in the record on this subject, the above presents the matter substantially correctly.

Then there appears in the record on this subject what purports to be a bystanders' bill, which was not taken or attempted to be filed until May 26, 1913, 38 days after the court had adjourned for the term. The court made and filed a qualification of this purported bystanders' bill, which, he says —

was filed "without my knowledge or notice to the district attorney, was presented to me for approval within the time prescribed by law, and same was disallowed for the reason therein indorsed, and being in substance as follows: For the reason that a bill of exception to the same subject-matter, viz., the refusal of the court to hear testimony on defendant's motion for a new trial, had been duly prepared by the defendant and presented to me for approval and by me duly approved and, as approved, agreed to and accepted by the defendant and ordered filed as a part of the record in this case during the session of the court, and which bill of exception so approved, in substance, states the true facts as to the action of the court in refusing to hear testimony on said motion for new trial. The clerk of the court is ordered to file the foregoing statement and explanation in connection with said purported bill of exception, and make same a part of the record in this cause."

There is but one order in the record which is dated April 15, 1913, by which it is ordered:

"The defendant be and he is hereby granted 30 days after the adjournment of this court in which to file a statement of facts and bills of exception."

The statute authorizes a statement of facts of the evidence on the trial of the cause to be filed at any time within 90 days after the adjournment of court, or 90 days after the order overruling the motion for a new trial in case the term of court lasts longer than eight weeks, without any order of the court to that effect. It also allows the filing of bills of exception within 30 days after said time, without any order of the court; but, if the bills of exception are not filed within said 30 days, then they cannot be legally filed, unless the court, by order properly and timely made, authorizes the filing of such bills of exceptions after said 30 days. By such proper order, timely made, the time for filing such bills of exception may be extended for 90 days, but no longer. Section 7, p. 266, of the act approved March 31, 1911, of the 32d Legislature (Vernon's Sayles' Ann. Civ. St. 1914, § 2073), at its Regular Session. This not only is statutory, but this court has all the time so held in a large number of cases unnecessary to cite. So that under no circumstances is this court required or authorized to consider said purported bystanders' bill proven up and filed 38 days after the adjournment of court.

As shown above, the said ground of the motion for new trial was not sworn to by appellant or any one else and was not supported by the independent affidavit of any one whomsoever. In Bryant v. State, 153 S. W. 1156, this court said:

"It has always been held that, when matters extrinsic the record are sought to be raised in the motion for new trial, such grounds should be verified by the affidavit of the appellant" — citing Barber v. State, 35 Tex. Cr. R. 70, 31 S. W. 649.

See, also, Serop v. State, 154 S. W. 558. This court has uniformly and in many cases held that an affidavit attacking the verdict of the jury cannot be considered by this court and is a nullity, even though sworn to, if the affidavit is made before appellant's attorney. Maples v. State, 60 Tex. Cr. R. 171, 131 S. W. 567; Patterson v. State, 63 Tex. Cr. R. 297, 140 S. W. 1128; Scott v. State, 143 S. W. 610. So that, as this matter is shown in the record, the action of the court presents no reversible error.

The record shows that several years before the killing of Emmett Moore, deceased, by appellant, said Moore and appellant's wife had been married, but divorced, and that after the divorce said Moore had married another woman and appellant had married and was living with the former wife of Emmett Moore, Sallie, as his wife; that, when Moore and Sallie were divorced, Sallie had two children. After the divorce, a question came up between them as to the custody of the younger of these two children. Deceased had procured its custody and had his mother to take charge of it for him, and she kept such charge for about a year. Shortly before the killing, Sallie had managed to get possession of this child, without the consent of the deceased, and the deceased began to try to regain possession of the child. He was much attached to it. Sallie had all the time retained the possession of her older child. Deceased at no time attempted to get possession of that child. The theory of the state was, and there was evidence tending to support it, that the killing occurred because of the deceased's repeated attempts to regain possession of this younger child. Appellant's contention was that the killing did not occur about the possession of this younger child, but that it occurred because of the deceased's conduct towards appellant's wife in attempting to induce her to leave appellant and come back to and live with the deceased, and the deceased's repeated attempts to induce Sallie to do this and his solicitations to get her away from appellant and have illicit sexual intercourse with him.

Appellant introduced his wife, Sallie, as a witness for him and had her testify, among other things, that the deceased was the father of both of her children. This older child was born within a few months prior to the marriage of deceased and Sallie, and the question arose as to the paternity of that older child. Her conception resulting in the birth of this child occurred months before deceased and she were married. The state attempted to show that appellant, and not deceased, was the real father of Sallie's older child. Sallie testified, at appellant's instance, that deceased, and not appellant, was the real father of her older child. In this attitude, the state was permitted, in cross-examination of Sallie Hicks, appellant's wife, when she was on the stand, after she had testified in substance as stated above, to ask her if appellant, and not deceased, was the father of her older child; and, further, that a few days before the trial when the deputy sheriff, Mr. Ellison, summoned her as a witness, if she did not tell him that deceased was not the father of her older child and that deceased did not claim the said older child as his. She denied telling Mr. Ellison any such thing. The court then permitted the state to introduce Ellison and prove by him that at said time and place she did make to him that statement. The court, in qualifying appellant's bills on this subject, stated substantially that such were the issues and the evidence introduced by appellant and testified to by his...