This appeal was filed June 9, 1927, was affirmed October 24, 1928, and the motion for rehearing was overruled February 6, 1929. The record of the proceedings, including more than 100 bills of exceptions and exceptions to the court's charge, embraces 408 typewritten pages. The statement of facts contains 379 such pages. In the appellant's briefs are embraced about 330 typewritten pages, and in his motions for rehearing are more than 200 such pages, making a total of more than 1300 pages. The application for leave to file a second motion for *Page 597 rehearing consisting of 48 typewritten pages, contains some criticisms of the court which are quoted below:
"We feel that there are many meritorious assignments of error in appellant's original main brief, which were not considered by the court, at least they were not discussed in the court's opinion, and we therefore assume that they did not receive much consideration. * * *
"It would appear that the court has been so impressed with the facts of this crime that these facts have been allowed to overshadow any and all contentions to the effect that the defendant has not had a fair and impartial trial, and that by reason of such condition the errors set up by appellant almost, regardless of what they are, have either been absolutely ignored by the court or else have been by roundabout process or reasoning held by the court to be harmless. * * *
"We feel that the law of this case ought to be considered as well as the facts; we believe that appellant is entitled to a trial in accordance with the laws of this State, and we do not believe that this court ought in any measure to allow itself to be swayed by the nature of the crime some one has committed like one might expect of a jury. * * *
"We, therefore, must earnestly ask that the court in the consideration of this motion lay aside the facts of this case and review calmly and deliberately the law points raised."
The views of counsel portrayed by the expressions quoted touching the attitude of the court of last resort in a case involving the life of an individual is a subject of regret. During the many months intervening between the time that the appeal was submitted and the court heard oral argument and the time of its affirmance, the many pages of matter presenting the appeal were examined in the most careful manner by the member of the court who wrote the original opinion, and in the progress of the examination various phases of the record and the legal questions involved were discussed with other members of the court. The conclusions stated in the original opinion were announced as the deliberate judgment of the members of the court after thoughtful and careful consultation among themselves. While fully conscious of the duty imposed upon them by their oaths and quite mindful of the serious consequences involved, they reiterated their conclusions upon the motion for rehearing. The assumption that the failure to write about all of the bills of exceptions implied that they were ignored or casually examined is *Page 598 both unworthy and unwarranted. It should be apparent that the volume of the record and the number of bills of exceptions rendered impracticable the discussion of all of them in the opinion.
Touching the contention that the procedure followed violated the provision of the state Constitution which provides that the accused on trial may be heard in his own defense, little of value can be added to that which has heretofore been written in the opinions delivered. Some light upon the proper construction of the provision in the Bill of Rights declaring that one accused of crime may be heard in person or by counsel or both, may be gathered from the expressions of the court in Tooke's case, 23 Tex.Crim. App. 11, in which Tooke invoked the constitutional provision mentioned, as conferring the right to be brought from the jail to the appellate court in order that he might be heard in person in presenting the appeal. In denying this privilege the court said:
"At nisi prius trials the right of being heard can not be denied the accused. In Wood v. The Commonwealth, 3 Leigh, Virginia, 805, it was held that 'upon the trial of a question of fact in a criminal case the accused has the right to be heard by counsel before the jury, and the court has no right to prevent him from being heard, however simple, clear, unimpeached and conclusive the evidence in its opinion may be.' And in The People v. Keenan, 13 California, 581, the court says: 'It is unquestionably a constitutional privilege of the accused to be fully heard by counsel. An opportunity must be afforded him for full and complete defense.'
"We are of opinion that a fair and legitimate construction of our constitutional provision limits the right of a defendant to be 'heard by himself' to the nisi prius trial. The language of section 10 shows that the intention was to declare rights pertaining to the trial before a jury or court where the charge was being investigated on the introduction of evidence."
The demand of the appellant in the present case was not during the development of the evidence before the jury but in the hearing by the judge when applying for a new trial. Analogous is the interpretation of the provision of the same section of the Constitution to the effect that when the accused has been once confronted by the witnesses against him, the reproduction of the testimony is legal. See Hobbs v. State,53 Tex. Crim. 71, and numerous cases collated in Vernon's Ann. Tex. Const., Vol. 1, p. 85, sec. 10.
The present application challenges the correctness of this court's ruling on practically all of the complaints made of the proceedings *Page 599 on the trial. As stated above, each of them has been given consideration, and the conclusions of the court are found in the opinions heretofore rendered in this appeal. After reading the application and examining such parts of the record as pertain to the constitutional and other important questions raised, we express the view that the opinions reflect the best judgment of this court touching the merits of the appeal.
The application to file a second motion for rehearing is overruled.
Overruled.