Yarbrough v. State

Full title: W. J. YARBROUGH v. THE STATE

Court: Court of Criminal Appeals of Texas

Date published: May 6, 1936

94 S.W.2d 179 (Tex. Crim. App. 1936)

94 S.W.2d 179

Opinion

No. 18280.

Delivered May 6, 1936.

1. — Bill of Exceptions — Question and Answer Form.

Bill of exceptions in question and answer form, without certificate on part of trial judge showing the necessity for such form, is not entitled to consideration.

2. — New Trial — Jury, Misconduct of.

Where motion for new trial, sought upon ground of misconduct of jury, was not sworn to nor affidavits filed in support thereof, the trial court was warranted in declining to hear testimony.

Appeal from the District Court of Crosby County. Tried below before the Hon. Homer L. Pharr, Judge.

Appeal from conviction for assault with intent to murder; penalty, confinement in penitentiary for fifteen years.

Affirmed.

The opinion states the case.

V. J. Campbell, of Spur, for appellant.

Lloyd W. Davidson, State's Attorney, of Austin, for the State.

CHRISTIAN, JUDGE. —

The offense is assault with intent to murder; the punishment, confinement in the penitentiary for fifteen years.

The trial was held in Crosby County on a change of venue from Dickens County.

The opinion on former appeal is found in 84 S.W.2d at page 729. The testimony adduced upon the present trial was substantially the same as that set forth in the opinion on the former appeal.

The only bill of exception found in the record is in question and answer form, without any certificate on the part of the trial judge showing the necessity for such form. Under the circumstances, said bill is not entitled to consideration. Garza v. State, 88 S.W.2d 113.

In his amended motion for a new trial appellant alleged that the jury was guilty of misconduct, in that one of the jurors referred to the fact that appellant had been theretofore convicted in Dickens County. The motion was not sworn to, and no affidavits were filed to support it. Under these circumstances, the trial court was warranted in declining to hear testimony. Faulkner v. State, 28 S.W.2d 551.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.