Appellant was convicted of assault to rape. I deem it unnecessary to go into a statement of the case on the facts, though I do not believe the statement of the evidence as set out in the original opinion is as clear and full as it should be, and in some respects is not, I think, in consonance with the record.
I more than seriously question the sufficiency of the evidence to support this conviction. It is shown on the motion for new trial appellant raised the issue of misconduct of the jury. This motion was set down for hearing by the court, and appellant asked that the jurors be summoned to testify. The matter set out in the motion for new trial was, the jury commented in their retirement on the failure of the defendant to testify in his own behalf, and also to place character witnesses upon the stand in his own behalf, and that they considered such failure to testify as well as the failure to place the witnesses on the stand in regard to his character. This is signed by counsel, and sworn to by one of the counsel on information and belief. Process was asked for the jurors to be brought into court, which the trial judge promptly and peremptorily refused to grant. My brethren affirm, holding these matters are not error. The statute provides, among other things, the court shall grant a new trial upon misconduct of the jury. Of course, it must in some way be material to or affect the verdict of the jury, or probably did. A comment on the failure of the defendant to testify is reversible error. It having occurred in the jury room, could not be raised except on motion for new trial. The further fact that the jury commented on the failure of the defendant to produce character witnesses is also reversible. The State would not have been permitted to introduce before the jury evidence of the failure of the defendant to testify or to produce character witnesses. It is provided by the statute also that it is "competent" *Page 107 to show this by the affidavits of the jurors, in support of this motion. This was not done in this case, but it was called to the attention of the court under oath by one of the attorneys of appellant that he had information and believed the information to be correct, that these matters had occurred. Upon this showing the court ought to have issued the process at the request of the defendant for the jurors and had them before the court. The statute provides, article 841, Revised Code of Criminal Procedure, 1911, as follows: "The State may take issue with the defendant upon the truth of the causes set forth in the motion for new trial, and in such case the judge shall hear evidence by affidavits or otherwise and determine the issue." It will be seen that it is not necessary that the affidavit of the jurors be filed, but in fact under the statute it is not required that an affidavit be filed at all in regard to this matter. The court may hear this evidence otherwise than by affidavit, and it has been, until the recent case of Hicks v. State, and the instant case, the rule that the trial court could hear it either way as the statute provided. This was so held in Richardson v. State, 28 Texas Crim. App., 216, and Kelley v. State, 31 Tex. Crim. 211. It was, in substance, also held in Maples v. State,60 Tex. Crim. 169, and in Patterson v. State, 63 Tex. Crim. 297. The writer wrote the opinion in the Maples case, and Presiding Judge Prendergast wrote the opinion in the Patterson case, and quoted at length from the Maples case, citing it as authority. In the Maples case it is shown that one of the counsel in the case took the affidavits that were filed. Following the line of authorities cited in the opinion, the court held that these were illegal and could not be considered. That has been the rule in Texas in its history. After so holding and the affidavits passed out of the case, then this language was used: "We would not reverse this case alone upon this proposition for the reason that the jurors were brought into court and testified; but, to prevent the happening of this matter in future trials, we have taken it up and decided it. (This has reference to illegal affidavits above mentioned.) Under our statute the court may decide a motion for new trial on contested issues by means of affidavits or by hearing testimony. Of course, the affidavits mentioned in the statute means such as can be legally taken. An affidavit taken by a party not authorized to administer oaths in the particular transaction would not constitute a legal affidavit, and, therefore, not the basis of testimony on objection." This was quoted and cited by Presiding Judge Prendergast in his opinion in the Patterson case, supra.
From the Richardson case, supra, I make this quotation: "We are not satisfied even as to the propriety of a judge privately seeking information as to a matter of fact pending before him for decision. Such statements are hearsay, and are not legitimate evidence. His decision on the motion for new trial should be based upon the evidence he has heard by affidavit or otherwise. Code Crim. Proc., art. 781, supra. It must be evidence testified or sworn to on the hearing before him, and where the witness' statements, credibility, and means of knowledge can be fully and legally ascertained. Ex parte, independent, and unsworn *Page 108 statements should not be allowed to override a defendant's sworn statement. The judge might, if he deemed proper, have called Crane's father to the stand if he knew or had any reason to believe that said Crane knew facts important and pertinent to the issue, and thereby have given defendant a right to subject him and his statements to the legal tests applied generally to witnesses and their evidence, if he had so desired."
In Kelley's case, supra, the court said: "The State filed no controverting affidavit contesting this issue, but the court heard evidence in relation thereto without such controverting affidavit. This action of the court, it is contended, is erroneous. We do not think so; first, because the testimony was not newly discovered, and this was manifest from the affidavit; and, secondly, because the court is authorized to hear evidence without such controverting affidavit. Willson Crim. Stats., secs. 2552, 2554."
The statute does not prescribe a rule which excludes all testimony except that by affidavit. Affidavits may be filed, and the court may try the question on motion for new trial on the affidavits, but this is not the only rule, for the statute expressly provides it may be done "otherwise." The word "otherwise" opens up any avenue that is legal for the court to determine the question by hearing evidence. It may be by witnesses or affidavit, but it may be by record evidence. There are many ways by which proof is reached through the evidence, and any character of testimony that proves the issue is admissible, or whether it proves it or not; if it sustains or tends to sustain the issue, it is admissible. To say that the issues on motion for new trial, on account of the misconduct of the jury, shall be tried only upon affidavit or when supported by affidavit, is a clear infringement and overruling of the statute and plainly sets at naught the express procedure provided by the Legislature. In fact, the court, in the opinion cited, indicates that perhaps the better and safer rule would be to have the witnesses before the court that he may look at them, hear them and know whether they are telling the truth or not. This could not be done if tried only upon affidavits, — not only so, but wherever an issue is to be tried the Constitution, article 1, section 10, expressly provides that the defendant shall have compulsory process for his witnesses. In this instance he applied for process for the witnesses, and the court peremptorily refused to grant it. There was no way for him to get the matter before the court except by order of the court, unless, of course, the witnesses should voluntarily come, but they did not appear. I suppose the trial judge proceeded upon the theory that a juror would not be permitted to attack his verdict. Whether that was the holding or not it is unnecessary here to discuss. If it was, then the statute expressly set aside and abrogated that rule when it provided it was "competent" to use the affidavit of a juror to show misconduct of any one or more of that body. We have another rule in our statute which has been accorded high standing by the majority of this court on more than one occasion, that is, that the provisions of the Code of Criminal Procedure shall be liberally construed to obtain the objects and *Page 109 purposes of the Code of Criminal Procedure. This they seem to have applied very liberally for the State, but very critically and harshly against the defendant. The statute above referred to did not apply for the State exclusively, but it applied generally to the procedure and practice prescribed by the Legislature. Instead of giving this anything like a liberal or even a fair construction, my brethren held that in the face of the statute which provides that these issues may be tried by affidavits or otherwise, that they can only be decided by affidavit. This seems to be out of harmony with the jurisprudence of the State as laid down in opinions already cited as well as by the statute itself. I do not care to follow this matter further. The defendant was clearly entitled to have those matters investigated by the court, and if the jurors would so testify he should have been awarded a new trial not only on their comment on the failure of the defendant to testify, but also on the fact which they used against him that he did not produce character witnesses. I wrote to some extent in a dissent in the Hicks case, and I write this in addition to what I there wrote. These are some of the reasons why I file this dissent.
March 10, 1915.