At the time of the rendition of the opinion by the majority I entered my dissent. In the multiplicity of matters I overlooked filing the reasons for that dissent at an earlier date.
My brethren, through Presiding Judge Prendergast, reached the conclusion that because of one of the grounds of the motion for new trial, towit: that the verdict of the jury was reached by lot, not being supported by the affidavits of any of the jurors, it could not be considered. With that conclusion I can not agree. A verdict by lot is interdicted by article 837 of the Code of Criminal Procedure, 1911. Article 837 provides, that "New trials, in cases of felony, shall be granted for the following causes. . . . 3. Where the verdict has been decided by lot, or in any other manner than by a fair expression of opinion by the jurors." This question was raised as one of the grounds of the motion for new trial. This was not supported by the affidavit of any juror. Appellant offered eight of the jurors as witnesses to prove the verdict was reached by lot, and the jurors would have so testified, and their evidence would have brought the verdict clearly within the most rigid rule required by any decision, and would have proved beyond any question that the verdict was by lot. I do not care to repeat the evidence. The trial court refused to entertain it because no issue had been raised by the State. In other words, this ground of the motion had not been controverted by the State. This furnishes no excuse; in fact, it would rather tend to augment appellant's side of the case. It would not do to lay down the rule that because the State does not controvert an issue on motion for new trial therefore the court will not consider it. If this rule obtained, then the conclusion would be irresistible that the State can defeat any ground of the motion for new trial and set aside the statute by failure or refusal to join issue with the defendant, and that, therefore, the defendant would be denied his guarantees of a fair hearing on his legal rights. The State by remaining silent or refusing to join issues can not defeat appellant of a fair trial, or a hearing upon any issue he suggests to the court, which is favorable to his side of the case. The statement of the proposition demonstrates the error. The majority opinion, however, seems to place this upon a different rule, that is, that the ground of the motion for new trial could not be considered because it was not verified or accompanied by affidavits to the effect that the verdict was by lot. I do not so understand the law, nor do I believe it has heretofore been so understood either by the Legislature or the courts. As I understand the majority opinion, it is admitted, or practically so, that the statute does not demand accompanying affidavits, and that where the motion is silent on this question with no accompanying affidavits, the common law rule will prevail. Therefore, they reach the conclusion under the authorities they cite, that it is necessary that the affidavits accompany this ground of the motion to verify it. Another article of our Code *Page 488 of Criminal Procedure provides that the provisions of such shall be liberally construed to obtain the objects and purposes declared by the Legislature in such Code. The fundamental proposition of criminal procedure is to give the accused a fair trial before an impartial jury, and this under the rules prescribed by the Legislature. Among other things, it is provided that no verdict can stand if obtained by lot or any other unfair means. This statute should be liberally construed to attain its purpose, towit: to prevent such verdict by lot or other unfair means. This is the legislative will as expressed in the statute, and should be so construed as to prevent such verdict. The statute has not provided this issue shall be raised by affidavits and not otherwise. In the nine grounds set out in the statute for which new trials may be granted the Legislature did not see proper to provide these shall be raised by affidavits as prerequisite to consideration by the court. Under subdivisions 6 and 8 of article 837 affidavits may be filed, and under subdivision 6 the motion for new trial, based on newly discovered testimony, shall be governed by the same rules as those which regulate civil suits. That subdivision is not further noticed because not in any way called in question here, nor has it any relation to this question further than it would emphasize the fact that under subdivision 3 the affidavit is not required. Subdivisions 6 and 8, supra, are rather exceptions in the statute emphasizing the fact that the other grounds of the motion for new trial are not to be verified by affidavit, that is, it is not necessary to so verify them. Subdivision 8 refers to the misconduct of the jury, and it is provided that where from the misconduct of the jury the court is of the opinion the defendant has not received a fair and impartial trial, it shall be competent to prove such misconduct by the voluntary affidavit of jurors, and the verdict may also in like manner be sustained by such affidavit. It will be noticed, however, that this subdivision does not make it a prerequisite to consideration of the question as to the misconduct of the jury that it be verified by affidavit. Article 841 of the Code of Criminal Procedure expressly provides that the State may take issue with the defendant upon the truth of the causes set forth in the motion for a new trial; and, in such case, the judge shall hear evidence, by affidavit or otherwise, and determine the issue. If the defendant files his affidavit, and there is no issue suggested by the State, the motion for new trial will be passed upon from the affidavits filed. If there are counter affidavits or a controversy about the matter, the court may then hear evidence, and this he may do either by affidavits or by other testimony. This is expressly so by the terms of legislative enactment; and it is to be noted there is a difference between subdivision 3 of article 837 and subdivision 8 of the same article. In one an affidavit may be presented, while in the other it is not required or even mentioned. Clearly, under article 841 the court shall hear evidence by affidavit or otherwise and determine the issue, because of the statute. This may be done by affidavit or by other character of testimony, either verbal or documentary. This can be introduced as any other evidence where it is relevant, necessary or *Page 489 admissible. Article 837 provides that new trials in cases mentioned under the terms of the statute shall be granted for the reasons therein set out. The third subdivision is where the verdict has been had by lot, or any other manner than by the fair expression of the opinion of the jurors. This does not require or intimate that affidavits are necessary. The question can be determined either by affidavits or any other character of legitimate testimony. This court can not interpolate the statute and make it requisite under this subdivision that affidavits be filed. If they are filed they will be entertained by the court. If they are not filed, and evidence is offered to sustain or justify the ground of the motion for new trial under article 841 it will be heard. For the court to interpolate or add to this subdivision of the article the requirement of an affidavit is an assumption of legislative prerogatives. This can not be done by the express terms of article 2, section 1, of the Constitution, and not only so but such assumption would be plainly violative of legislative authority and enactment as under the terms of articles 837 and 841, supra. The rule laid down by the majority is of the harshest and strictest nature and is far removed as possible from the statutory rules. It seems to be destructive of the very thing the statutes were enacted to prescribe and to perpetuate. I do not believe it the correct doctrine that the rule of liberal construction applies only when favorable to the State or conviction or affirmance. The Legislature has not so prescribed; on the contrary, it is provided that the presumption of innocence and the reasonable doubt shall obtain, and this follows the case to its final conclusion. Our criminal procedure in all of its rules providing for trial before a jury is enacted to the end that the trial may be had under prescribed forms and requirements. That affidavits under the circumstances of this case are prerequisite to presenting the question of a vicious verdict by lot, seems to me to be assumed, outside the statute, and subversive of its plain provisions. Speaking of this question, in Stanley v. State, 16 Texas Crim. App., at page 400, Presiding Judge White said: "If the evidence had been claimed as newly discovered, then, indeed, the supporting affidavit of the proposed witness would have been requisite to the validity of the motion. (Code Crim. Proc., art. 777, subdiv. 6; Clark's Crim. Law of Texas, p. 571, note, sec. 6.) In all other respects it is only when the State has taken issue with the defendant upon the truth of the causes set forth in the motion for new trial that the judge hears evidence by affidavit or otherwise, to enable him to determine the issue. (Code Crim. Proc., art. 781.) When not controverted, and not based upon newly discovered evidence, no supporting affidavits are required. If the State took issue on and controverted the motion in this case, the record fails to show it." Now, as Judge White says, except in the instance mentioned, the supporting affidavit is not necessary. The court may hear the evidence as provided under present article 841 and determine the matter, and except in the instance mentioned Judge White says that no supporting affidavits are required. The Stanley case has been followed by this court in Keith v. State, 56 S.W. Rep., 628, Judge *Page 490 Brooks delivering the opinion of the court in that case. Copying from the head-note instead from the opinion, it is thus stated: "Code Crim. Proc., article 817, subdivision 8, requires new trial in felony cases where, from misconduct of the jury, the court was of opinion that defendant had not received a fair and impartial trial, and made the voluntary affidavit of a juror competent to prove such misconduct. Article 821 authorizes taking issue on the truth of causes set forth in a motion for new trial, and provides that the judge shall hear evidence, by affidavit or otherwise, and determine the issue. Held, that the trial judge was authorized to hear testimony of the jurors adduced on controverted questions raised by the motion for new trial, and it was not necessary that the affidavits of such jurors be obtained." Richardson v. State, 28 Texas Crim. App., 216, is also cited by Judge Brooks in support of his decision as well as Stanley v. State, supra. That an affidavit may be filed can be admitted, but that it is requisite can not be maintained under subdivision 3 of article 837. The writer very seriously questions that even where newly discovered testimony is the issue that the affidavit is a sine qua non. If the party whose affidavit is desired to sustain the motion on the ground of newly discovered testimony is present, the court may examine him as well by oral testimony by having him sworn as a witness, as by affidavit. The statute does not make the affidavit requisite, as I understand it, but if it does authorize the filing of affidavits, still the affiant would be just as capable and competent a witness upon delivering his testimony orally as by affidavit. The same end would be reached, and to hold otherwise might be a very harsh and unnecessary rule. The truth of the matter is the thing to be sought. But in no event could this be applied to subdivision 3 of article 837.
Without discussing this matter at any length, I think the conclusion is inevitably correct that the trial court erred in not hearing the testimony of the eight jurors to prove the viciousness of the verdict. They would have testified that the verdict was reached by lot, and the bill of exceptions so demonstrates. By a harsh and illegal rule of construction appellant was deprived of a hearing on the grounds set up, and the evidence would overwhelmingly sustain the fact that the verdict was vicious. A citizen of Texas should not be deprived of his legal rights in this manner. If the Legislature should see proper to change this manner of procedure or practice, then we would have a different rule, but they have not done so, but expressly, as I understand it, provide the other way. It does not limit the trial court in his manner of investigating a question, except as set out in article 841, supra, and says he shall hear evidence by affidavits or otherwise. My brethren hold that he is deprived of his right to be heard at all unless affidavits are filed. I can not therefore agree with the conclusion they have reached nor the reasoning by which they reached it. I, therefore, most respectfully enter my dissent. *Page 491