Scrivnor v. State

LATTIMORE, Judge. Conviction for robbery; punishment, ten years in the penitentiary. We find in the record only four bills of exception, the first of which was taken to the court’s refusal of a new trial, sought because of alleged *567 misconduct of the jury. The motion was supported by the affidavits of two jurors. The state’s traverse of this motion appears to be supported by the affidavits of the remainder of the jury, and upon the hearing of the motion all of the jurors appeared and gave oral testimony. This bill of exception covers practically 150 pages of the transcript. Manifestly it would not be practicable for us to set out the testimony heard or any considerable part of it. In his order overruling the motion the trial court set-out at length his reasons for concluding that there was no such misconduct of the jury as called for a new trial; that the reference by a member of the jury to the failure of appellant to testify was made by a juror favorable to appellant, and that at once the matter was stopped without discussion; that facts outside the record, alleged to have been discussed in the jury room, were shown by a preponderance of the testimony not to have been discussed, or if at all such discussion was only after the verdict was reached and the penalty agreed upon. Each of the matters set up in the motion as ground for a new trial was specifically referred to and adjudicated in the finding of facts on the part of the trial court, which appears as part of his order declining to grant a new trial,— as we understand the record, — and the court’s adverse conclusion thereon is announced. Upon some of these matters the testimony heard was not in harmony, but in our opinion, after a study of such facts, the conclusion of the court was in each instance supported. When there is direct conflict of evidence in such matters, the decision is for the trial court, and we uphold his findings unless same appears so against the weight of the testimony as to manifest an abuse of his discretion. The state in its brief, and appellant likewise, have called attention to various matters said and done in the jury room, all of which have been considered, and the law governing which appears so well settled as not to call for review of the particular cases cited by either party. We see nothing in either bill of exception 2 or 3 as qualified by the trial court. The optical experiment, not backed by testimony nor shown to be applicable to facts before the jury, was properly rejected. The witness McDaniel having admitted that following four convictions for forgery he was given nine years in the penitentiary, at which place he met appellant, we do not see how the question as to the return of similar indictments at or prior to those for which he was convicted, could have so affected the result of this trial as to call for reversal. The court below offered to allow appellant’s counsel to make such inquiry as he saw fit regarding indictments returned during the ten-year period preceding this trial, and also to permit appellant to prove any conviction of said witness for felonies regardless of the date of such conviction. Appellant did not see fit to avail himself of this permission. The offense charged was robbery of Chester Griffin who was the employee of a bank, and according to the testimony supported by witnesses *568 before the jury, appellant was a principal offender in said bank robbery at Texas City. We see no benefit to come from setting out the testimony at any length. Finding no error in the record, the judgment will be affirmed. Affirmed.