The original opinion herein, and the record, were turned over to Judge Davidson at his suggestion, on January 26, 1915, for investigation and examination. The next day he turned them over to the clerk for the opinion to be handed down with this endorsement on the opinion, "Davidson, Judge, dissents," and with this at the foot of the opinion, "I can not concur, and may write on one or more of the questions mentioned in the opinion. Davidson, Judge," — all written by him. On February 15, 1915, he filed his dissenting opinion. Neither of us saw or knew it until one of the stenographers thereafter called our attention thereto.
To his opening statement, "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," we have to say: Although he took the record and original opinion for investigation and examination before the opinion was handed down, as stated, he in no way, and at no time, before the original opinion was announced and handed down, complained, suggested or intimated to us, that the statement of the evidence in the original opinion was not clear or full, nor that it was not "in consonance with the record." He was present when the original opinion was handed down in open court. It occurs to us if any of his complaints now made had had the slightest merit, he would then in some way, have called our attention thereto. If he had, and there had been any error by us of either omission or commission, we would gladly have corrected it. Appellant filed no motion for rehearing making such complaint, nor does Judge Davidson *Page 110 attempt to point out any. The statement we made was "as clear and full" as could be made from the evidence in the record. In no particular was any statement made by us which is not "in consonance with the record." Every statement by us, in every respect, is strictly and fully "in consonance with the record."
To his next statement, "I more than seriously question the sufficiency of the evidence to support this conviction," we have nothing to say, except that a jury of twelve competent, fair, impartial and disinterested men, after hearing all the witnesses and seeing their manner of testifying and hearing full argument by the attorneys for both sides, upon their solemn oaths, said appellant was guilty "beyond a reasonable doubt," and a learned, fair, impartial and just trial judge, who also heard all, also so said. We reached the same conclusion from a careful study of the whole record.
In the remainder of his opinion, Judge Davidson criticised us for not reversing this case because the trial judge refused to summon the jurors and require "that they be placed under the rule and that they be examined by these counsel in open court under oath singly" as to whether or not they had violated their oaths and were guilty of some misconduct in "trying this case," on the bare statement by appellant's attorneys in their motion for new trial, in effect, not sworn to by anyone, "that said jury or some member thereof" might have violated his oath.
Judge Davidson contends in his opinion, that as article 841, Code of Criminal Procedure, says, "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 affidavit or otherwise, and determine the issue," that therefore the judge is not restricted to affidavits but can hear evidence "otherwise" also. Certainly this is true, and we did not hold in this case, nor in the Hicks case (171 S.W. Rep., 755), nor in any other case, that this could not be done. Nor can our opinion in this case, the Hicks case, or any other, be tortured into holding that it could not be.
In order to make the point clear in the Hicks case, in the original opinion, we quoted what the trial judge stated as the reason he refused to have the jurors who were present sworn and testify, in a separate paragraph, as follows: "No issue as to the misconduct of the jury having been submitted to the court, the jury was not permitted to be sworn and impeach its verdict which appeared not impartial or unfair under all the facts of the case" (171 S.W. Rep., 757), and applying what the judge so said to the facts on that question, we specifically stated: "The said ground of the motion for new trial was not sworn to by appellant or anyone else, and was not supported by the independent affidavit of anyone whomsoever." (P. 757.) We then cited and quoted what Judge Harper said in Bryant v. State, 65 Tex.Crim. Rep., 153 S.W. Rep., 1156, as follows: "It has always been held, that when matters extrinsic the record are sought to be raised in the motion for new trial, such grounds should be verified by the affidavit of appellant." Then in the opinion on rehearing in that Bryant case, in answer to appellant's *Page 111 complaint that he had failed to find any such case, Judge Harper said: "If he will read Barber v. State, 35 Tex.Crim. Rep., 31 S.W. Rep., 649, he will find a case so holding, and this has always been the rule." Judge Davidson himself wrote the opinion in said Barber case, and said: "The motion for new trial is not sworn to, nor does the affidavit of appellant, or his counsel, accompany the motion. This is in no sense a compliance with the law. . . ." Judge Davidson was present and participated in and agreed to Judge Harper's opinion in said Bryant case, both in the original opinion and that on rehearing.
Again, in the Hicks case in the opinion on rehearing, we demonstrated that the only question we were considering, or discussing, or deciding on that point, was that in order to require the lower court to hear evidence, at all, whether by affidavit or otherwise, it was absolutely essential for the motion for new trial attacking the verdict on any ground dehors the record, to be sworn to. After citing and quoting authorities clearly and distinctly so establishing, in a separate paragraph, we said:
"We think there can be no sort of doubt but that these authorities establish beyond question, that in order for appellant to have had considered his ground of motion attacking the verdict of the jury on any matter extrinsic the record itself, as a matter of pleading, he must support it by his own affidavit, or the affidavit of someone else specifically showing the truth of the grounds of attack. And when it is not so swornto or supported, it presents no question requiring the lowercourt to consider or investigate it." (171 S.W. Rep., p. 763.)
Again, in our opinion in this case, we distinctly state: "The basis of the holding of this court in that case (Hicks) was, that the court properly refused to hear the jurors and have them testify, although in actual attendance for that purpose, becausethe attempted pleading in the motion averring said misconduct ofthe jury was not sworn to by the appellant or anyone for him."
All this is made so plain, clear and simple in all said opinions, that he who runs may read and not err therein. So that anyone can see that when Judge Davidson in his dissenting opinion herein says: "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," and all else he says on that subject, is wholly uncalled for and has no application whatever to what we said or decided in either this or the Hicks case.
It is perfectly evident from a casual or careful reading of his opinion, he wholly misconceived the question. We discussed and decided the requisites of a proper pleading to admit any evidencewhatever, whether by affidavit or "otherwise," or by both affidavit and otherwise, and nothing else. He does not discuss that question at all, but does discuss the character of evidence which would be admissible when the proper pleading had been filed.
His animadversions upon us in his dissenting opinion, wherein he says we have given high standing on more than one occasion to the rule *Page 112 of our procedure statute requiring that it shall be liberally construed, and that we "seem to have applied (that rule) very liberally for the State, but very critically and harshly against the defendant," calls for some attention on our part. He evidently refers to our holding in this case that the ground of the motion herein attacking the jury for misconduct was not so sworn to as to properly require the judge to have the jury summoned, sworn, etc.
We will let him answer himself, in this respect, by one of his own recent decisions. We refer to Hampton v. State,63 Tex. Crim. 100. He wrote the opinion in that case June 23, 1911, a few months after our accession to this court.
The official report of that case does not state what the fourth ground of the motion for new trial was, nor did Judge Davidson state what it was in his opinion holding it "is not verified in any way and can not be considered other than generally it `alleges misconduct' of the jury." The papers in that case have at all times since then been on the in this court and now are. We have procured them and will state fully and quote literally said fourth ground and the "swear at it" by the appellant therein. In order to make clear the reference in said fourth ground to these words, "in connection with the foregoing," we will state the substance of the third ground which is evidently what is referred to by said words.
Hampton made a motion for new trial. In his third ground he complained of the judge's refusal to withdraw from the jury the district attorney's closing argument wherein he pointed at, and referred to defendant as "this bully" in connection with his remarks that defendant had come eight miles to the picnic, unlawfully carrying a pistol, with murder in his heart and was looking for trouble. Then his fourth ground was:
"4. In connection with the foregoing, defendant would show further that while the jury was deliberating upon its verdict, and before the verdict was reached, several members of the jury discussed the character and reputation of defendant; several of said jurors remarked that he, the defendant, was a mean looking negro; that he had the appearance of being a bully, and inquired of one of the jurors, who knew the defendant and lived in the same section of the county, whether or not the defendant was a gambler, a crap shooter and a bully, to which said juror replied, in the presence and hearing of other jurors, that he knew nothing personally about the facts inquired about, but that he had heard that defendant was a gambler and crap shooter, and defendant would show that such conduct of the jury was calculated to and did prejudice the defendant in the minds of the jurors, and that thereby defendant did not receive a fair and impartial trial. Defendant would further show that his character was not put in issue in the case." This motion was signed by his attorneys, J.S. McIlwaine and Sawnie Robertson. It was then sworn "at" by Hampton, as follows:
"Dock Hampton, defendant, being duly sworn, says on oath that *Page 113 the matters and facts set forth in paragraph 4 of the above and foregoing motion are true to the best of his knowledge and belief.
"Dock Hampton, Defendant.
"Subscribed and sworn to before me this the 15th day of October, 1910.
"Pat H. Beaird, (Seal) "Clerk of the District Court, Smith County, Texas."
Judge Davidson based his opinion on that point solely on the insufficiency of the motion and swear at it, and held: "The fourth ground of the motion for new trial alleges misconduct of the jury in their retirement in reaching their verdict. This isnot verified in any way and can not be considered." (Italics ours.)
A mere casual, or a most careful, reading and comparison of this and the Hampton case will show they can not be distinguished. Comment is unnecessary.
Our original opinion in the Hicks case was handed down November 26, 1913. Within fifteen days thereafter Hicks made a motion for rehearing. We held the case under consideration a long time under this motion, expecting Judge Davidson would write his dissenting opinion therein so that we could have the benefit of it. But finding he would not write it, on March 4, 1914, we handed down the opinion on rehearing. Judge Davidson did not file his dissenting opinion therein until December 21, 1914, thereby withholding the opinion from publication till the issue of January 20, 1915, of the advance sheets of the Southwestern Reporter. A reading of it, and our opinion therein will demonstrate he clearly misconceived the question in that, as well as in this, case. We have written this paragraph about the Hicks case because Judge Davidson added as a tail to his dissent herein this: "I wrote to some extent in a dissent in the Hicks case, and I write this in addition to what I there wrote."
Evidently he could find no case or authority to back his dissent from November 26, 1913, when the original opinion was rendered, till December 21, 1914, — one year and nearly one month, — when he filed his dissenting opinion therein, nor since then to February 15, 1915, when he filed his dissent herein, — an additional time of nearly one year and two months, for none of the cases or statute cited by him are in point to support his dissent.