Appellant's motion for rehearing presents only the question in the bill of exception complaining of the misconduct of the jury.
A brief filed on the day of submission discusses a great many other matters in the record, and presents an agreement between counsel for the State and the defense showing the elimination of a portion of a written statement given by appellant regarding the homicide. The eliminated part was not read to the jury and plays no part in the consideration of the case in this court.
Complaint is made of inaccuracies in the opinion in stating the facts. We have re-examined the record very carefully and find nothing material in such statements. Consequently, no discussion of them will be made at this time.
The trial of the case ended on the 21st day of June, 1945. On the same date appellant filed his motion for rehearing, alleging misconduct of the jury with affidavits of Ford Clinger and Spencer Weber, two of the jurors in the case, as to discussions which took place. The court immediately heard the motion and these jurors, together with others, were placed on the witness stand to testify as to the occurrences alleged.
The court had given a charge on self defense. At the time of the shooting the record is silent as to whether or not the deceased made any effort to attack appellant. Several witnesses testified as to the shooting, and it is also in evidence that two soldiers were immediately on the scene, but there is no denial *Page 130 on the part of appellant that there were numerous others within sight of the shooting. Consequently, the rule invoked, that a discussion about the failure to produce this evidence constituted a reference to the failure of the party on trial to testify, is not in the case. The affidavits of the jurors relating to this matter include the further statement in the jury room that the defendant, Burt Thurmond, would have testified to such acts had any been in the case. When these jurors were placed on the witness stand in behalf of the motion they declined to follow this statement. Each one says, as do other jurors, that no reference was made to Thurmond's failure to testify in such discussion. The affidavits could not be accepted by this court, contrary to the evidence given by the jurors and the finding of the trial court on the facts presented on the motion. Even if the jurors had made such statement on the hearing as appears in the affidavits, there is contradicting evidence and the finding of the trial court would be conclusive on appeal.
Counsel presenting this case were appointed by the court and deserve the highest commendation for their diligence in performing the duty placed upon them. It is perfectly apparent from the record that appellant was ably represented on the trial of his case and the heavy penalty which the jury gave him does not in any way indicate any lack of diligence or ability on the part of his counsel. The statement of facts in the case, as discussed in the original opinion, was delayed due to what we considered questionable lack of diligence but we did not find that appellant was altogether blameless in the matter, and could not now say that our conclusion to consider the statement of facts prevented a reversal of the case. To the contrary, the writer is of the opinion that any laxity of our rules in the matter inured to his benefit and there would have been no reversible error presented had we concluded not to consider the statement of facts. The case has been thoroughly presented and we have given the motion for rehearing careful consideration. We find no error in the trial of the case.
The appellant's motion for rehearing is overruled. *Page 131