Appellant urges in his motion for rehearing that a prejudiced juror sat in his trial, and that we erred in not sustaining complaint thereof brought forward in bill of exception number one.
Evidence upon the issue as to whether a juror was prejudiced may be presented on the hearing of the motion for new trial by affidavits, oral testimony or both; in the present instance *Page 119 both were resorted to. Before reverting to the evidence heard on the motion it will be well to state the principles controlling in such cases, and we quote from pages 288 and 289 of Branch's Ann. Tex. P. C. on the subject, as follows: "When it is sought to show on the hearing of the motion for new trial that a juror before the trial had expressed an opinion of defendant's guilt or had made statements which showed a prejudice against defendant, the decision of the trial court on that issue will be sustained by the Appellate Court unless clearly wrong if the evidence bearing thereon was conflicting and was sufficient, if believed, to justify the action of the trial judge." * * *
"If there is testimony tending to show that a juror before the trial had made remarks indicating prejudice against the defendant or an opinion of defendant's guilt and that this was unknown to defendant at the time the juror qualified and was accepted, but on the other hand * * * if the juror and others deny that the remarks were made, then it is a question for the trial judge to decide as to the fairness and impartiality of the juror, and unless it clearly appears that he has abused his discretion his finding on that issue will not be disturbed." Many cases are cited supporting the text.
It was alleged in the motion for new trial that the juror Oscar Dishman "had formed and expressed an opinion as to defendant's guilt and that the said juror had discussed it many times with various people, including T. L. Ellis, R. R. (Bob) Ellis, Miss Mae Johnson, Mrs. Dishman and others." To support the said averment appellant attached to his motion the affidavits of R. R. (Bob) Ellis and T. L. (Tom) Ellis. In the affidavit of Bob Ellis he states that on Sunday afternoon, January 29th, 1939 — which was the day before the case was to be tried — witness in company with his brother (Tom Ellis) and the latter's wife, went to the Dishman home to pay his aunt, Mrs. Dishman and her husband a visit; that in addition to those already mentioned there were also present James Lewis, and Miss Johnson. The affidavit then recites that Mr. Dishman mentioned having gotten a summons for jury service for the next day, and then follows the relation of a conversation in which Dishman participated, the details of which it is not necessary to set out, but which, if true, showed Dishman to be a biased juror who had prejudiced appellant's case. The affidavit of Tom Ellis, which was in all material respects the same as Bob's, was also attached to appellant's motion.
The District Attorney answered appellant's motion, traversing and denying that the juror Dishman had expressed any *Page 120 opinion as to appellant's case indicating that he was an unfair juror. The State attached to its answer the affidavit of the juror in which he denied categorically every statement contained in the affidavits of the two Ellis affiants, and asserted that prior to being taken on the jury he knew nothing of the facts of appellant's case, and had expressed no opinion as to his guilt or as to his case. He stated that on Sunday, January 29, 1939, Bob Ellis was at his (Dishman's) home for about ten minutes; that Bob was drinking "pretty heavily;" that Dishman remarked that he had a special venire card calling him for jury service the next day; that Bob asked what case it was on, to which Dishman replied that he did not know but it was in Judge King's court; that Bob then said, "You are on Dee Mangum's case," and someone else present said, "No, that case is not coming up tomorrow; it has been postponed." The juror then says in his affidavit, "This (the foregoing) is a full and complete conversation that I had with Bob Ellis at any time prior to the rendition of the verdict in this case regarding the trial of Isaac D. Mangum." Immediately following is a specific denial of every statement contained in the Ellis affidavits indicating knowledge on the juror's part of appellant's case or bias or prejudice towards appellant. The juror further states in his affidavit that neither Tom Ellis nor Tom Ellis' wife was in his house on Sunday, January 29, 1939, and that neither of them came there on said occasion with Bob Ellis. Dishman further affirmed that on February 12, 1939 — which was after the trial — he returned home from attending a funeral and at said time found Bob and Tom Ellis and the latter's wife at his (Dishman's) house; that Miss Mae Johnson was also there and that she and the two Ellis boys all expressed dissatisfaction with the verdict in appellant's case; that on this occasion there was a general discussion of the facts in appellant's case. Attached to the State's answer was the affidavit of Mrs. Dishman who denied therein the presence of Tom Ellis and his wife at her house on January 29, 1939, and denied the truth of the statements contained in the affidavits of Bob and Tom Ellis. Also attached to the State's answer was the affidavit of J. L. Hancock, who lived with the Dishmans. He affirmed that on January 29, 1939, only Bob Ellis was at the house and stayed only a short time; that Tom Ellis and his wife were not there on said date, but that about a week after Dishman had served on the jury the two Ellis boys and their wives came to the Dishman home at which time witness heard them discussing appellant's case. Also attached to the State's answer was the affidavit of James Lewis who lived at the Dishman home. He *Page 121 affirmed that he was at the house all day on January 29, 1939, and that only Bob Ellis came to the house that day and that the only thing Dishman said was that he had received a card to serve on the jury the next day; that Tom Ellis and his wife were not present; that about a week later and after the trial Bob and Tom Ellis and the latter's wife were at Dishman's house, at which time there was some discussion of the verdict and the facts in appellant's case. We take note of the fact that notwithstanding the contradictions regarding the statements in the affidavits of Tom and Bob Ellis, that no affidavit from Mrs. Tom Ellis appears in the record, neither was she called as a witness on the hearing of the motion for new trial, although both Bob and Tom claimed that she was with them at Dishman's house on January 29th. Upon the hearing of the motion appellant called as a witness Miss Johnson. It developed that she had declined to give any written statement to either the State's or appellant's attorneys, but that when the representatives of the State sought an interview with her she telephoned Bob Ellis to be present. Miss Johnson testified substantially to the same facts contained in the affidavits of the two Ellis boys as to statements made by Dishman on January 29th, asserting that both Tom and Bob were present at the time. She also testified to various conversations between Mrs. and Mr. Dishman, and between the witness and Mr. Dishman in which Dishman is claimed by her to have made statements which, if true, would show him to have been an unfair juror. The State then introduced another affidavit of Mr. Dishman which was apparently secured after Miss Johnson had given her evidence, in which affidavit Dishman specifically and categorically denied every statement claimed by Miss Johnson to have been made by him which would have in any way impugned his fairness as a juror.
Appellant makes much of the fact that the juror Dishman was not called in person to testify on the hearing of the motion. The trial court certifies that he considered all the affidavits appearing in the record, and in his qualification declines to certify as true a recital in the bill to the effect that Dishman was available as a witness, because, the court says, there was no evidence before him to that effect, and that to so certify it would be necessary for the court to assume that it was true, when it had not been made known to him in a legal way. We are cited to Wilson v. State, 128 Tex.Crim. R.,79 S.W.2d 852 as having some bearing on the fact that Mr. Dishman did not testify in person on the hearing of the motion. The case *Page 122 is not deemed to be in point. There the party who might have thrown some light on the controversy did not testify either personally or by affidavit.
The trial court and this court should always be vigilant to secure fairness and impartiality on the part of jurors, but the record before us presents a typical case where this court should move with extreme caution before holding that the trial court abused his discretion in declining to find that the juror was unfair and biased. A case could scarcely be presented where the issues were more clearly presented than in the one now before us. Certainly the trial judge was in a better position to determine that issue of fact than is this court, and we discover nothing in the record which challenges the correct exercise of the trial court's judicial discretion. Certainly the evidence upon the question was conflicting, and the evidence on the State's part was sufficient to support the trial court's ruling. He evidently accepted the State's evidence as true on the controverted issue. Making application of the controlling principles stated in the beginning of this opinion we find no just reason for disturbing the trial court's judgment.
Appellant's motion for rehearing is overruled.