Appellant insists that his motion for new trial based on misconduct of the jury, being sworn to and not controverted by the State, its refusal was error, and that we should have so held in our original opinion.
There were thirteen grounds of the motion for new trial. Some complain of errors in the charge as given, others of the refusal of special charges, and yet others of the omission of certain things from the main charge; others of the wrongful admission of testimony, and one ground of said motion asserts in general terms that the reputation of appellant was discussed by the jurors in their retirement, and the commission of other offenses attributed to him, no evidence having been introduced upon either issue, and that some of the jurors were influenced thereby in arriving at the penalty inflicted. From the jurat of the clerk who swore appellant to the motion it appears that he swore generally to the truth of all the allegations contained in said motion. We are not quite clear as to the exact contentions made by appellant, but if we understand them it is that having made his motion for new trial and sworn to it, the matters therein stated should be taken as true in the absence of some traverse by the State. We are not cited to any authority so holding. As far as we know the cited cases of Stanley v. State, 16 Texas Crim. App., 400, and Richardson v. State, 12 S.W. Rep., 871, do not touch the issue here involved. In those cases applications for continuance had been made and overruled and the materiality of the absent testimony being disclosed during the trial of the cases, and the court below having refused motions for new trial apparently because the affidavits of the absent witnesses were not appended, this court held such action to be erroneous. There is no discussion of the legal aspect of a sworn motion for new trial in the case of Hollingsworth v. State, 250 S.W. Rep., 683, that not being an issue in the case. An inspection of the original record in that case now on file in the office of the clerk of this court discloses, however, that the motion for new trial was sworn to and that in addition there was appended an affidavit of a juror which discloses misconduct of the jury, and in the absence of any kind of controversy was held by us sufficient. Nor do we find aught in the dissenting opinion in Hicks v. State, 171 S.W. Rep., 768, which sustains appellant's contention. The member of this court who wrote the dissent based it on the error of the court below in refusing to allow *Page 467 the accused to prove by eight jurors whom he had present when the motion for new trial was heard, the truth of his allegations in such motion that the verdict was decided by lot. The trial court based his rejection of the proffered testimony on the fact that the State had not controverted the motion, and a decision of the propriety of the action of the lower court in that case would seem settled by a reference to Art. 841, C.C.P., and subdiv. 3 of Art. 837, C.C.P.
If appellant's contention was the rule which controlled, then every motion generally sworn to by the accused, as in this case, would necessarily prove itself as to all matters therein contained as much in one particular as another, and we would thus come to the practice of accepting as true all allegations regarding the charge, the refusal of special charges, the admission or rejection of testimony, provided such allegations were generally sworn to. There is no such rule in this State.
In regard to the proposition that the motion is but a pleading, in Sharp v. State, 71 Tex.Crim. Rep., appears the following statement of the law:
"The motion for a new trial is but a pleading, together with the exhibits attached thereto, and when it is sought to raise therein an issue extrinsic the record, it must be sworn to, yet, swearing to it does not render it any the less a pleading in the case."
Appellant's contention that his motion sworn to is in the nature of a verified account, does not appeal to us. The truth of the allegations of the motion for new trial if of matters dehors the record, must be made to appear in some way by what may be characterized as testimony, which may be made by affidavit or oral evidence. As said by us in Odom v. State, 82 Tex. Crim. 584 :
"Matters of fact set up in motion for new trial, which matters of fact are not verified by bill of exceptions or statement of evidence filed during the term can not become the subject of review."
The soundness and justice of this view in regard to matters set up dehors the record is apparent from an analysis of the contention of appellant in the case before us. His sworn motion as to what took place in the jury room, is as to appellant wholly hearsay at best. He was not there. He is only swearing to what some one else told him. It would still be of the same kind if he gave names and attempted to give exact quotations from what was said by the jurors to him. All this the trial court knew, and no affidavits being appended to the motion and no profert being made of oral testimony in support of his pleading, the trial court correctly refused the motion.
The motion for rehearing will be overruled.
Overruled. *Page 468