
    CARMICKLE v. STATE.
    (No. 9144.)
    (Court of Criminal Appeals of Texas.
    May 27, 1925.
    On Motion for Rehearing, June 24,1925.)
    I.Criminal law <&wkey;>452(2) — Testimony as to sanity ofaeoused held proper, where there was showing of an intimate acquaintanceship.
    Testimony, in prosecution for forgery, that from being with defendant, hearing him talk, seeing him, noting his conduct, and dealings had with him, witnesses never observed anything to indicate that he was mentally unsound, and that in their judgment he was of sound mind, held proper, where there was an intimate acquaintanceship, and abundant opportunity to form bases of opinions.
    2. Criminal law <&wkey;957(l)—Affidavit by accused of statements in jury room held hearsay.
    Affidavit of defendant in forgery proseeution, on motion for new trial, rehearsing statement made in jury room by one juror to another, held hearsay.
    On Motion for Rehearing.
    3.' Criminal law <&wkey;884—Document handed to court by jury, reco'mmending that defendant convicted of forgery, be pardoned at certain time, properly rejected. ■
    Where, in forgery prosecution, defendant contended that, when jury returned verdict of guilty, assessing penalty of 2 years in penitentiary, they also handed to court another document recommending that, after 12 months of good behavior, appellant be pardoned, held that, if such document was handed to court, it was properly rejected, as a matter beyond the power of jury.
    4. Criminal law <&wkey;>!090(l5)—For accused to take advantage on appeal of situation arising in trial court, matter should be presented in bill of exceptions.
    Where, in forgery prosecution, defendant contended that, when jury returned verdict of guilty, assessing penalty of two years in penitentiary, they handed to court another document, recomending that, after 12 months of good behavior, defendant be pardoned, held that, if court failed to inform jury they were exceeding their province, and accused desired to take advantage of the situation, he should have presented matter by bill of exceptions.
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    E. M. Carmickle was convicted of forgery, and he appeals.
    Affirmed.
    W. W. Kirk, of Plainview, and T. H. Mc-Gregor and A. L. Love, both of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

From conviction in district court of Hale county of forgery, with punishment fixed at two years, appellant appeals.

Two bills of exception were reserved. Each presents practically the same objection to the action of the trial court in permitting witnesses, who had known appellant for a long time and been intimately associated with him, to state that, from being with him, hearing him talk, seeing him, noting his conduct in dealings had with him by said witnesses, they had never observed anything to indicate that he was mentally unsound, and that in their judgment he was of sound mind. Each bill is qualified by the learned trial judge by a statement of the facts showing the intimate acquaintanceship and abundant opportunity on the part of the witnesses to form bases for the opinions expressed. We see no error in either bill.

Appellant asked for a new trial, asserting that one of the jurors made statements to his fellow jurymen in their retirement which were improper. No affidavit of any juryman is attached to the motion. The fact that appellant swore to said motion would not require the court to grant same. The matter of what took place in the jury room, as far as appellant was concerned, was necessarily hearsay, and his affidavit regarding it was of the same character. The court did not err in overruling said motion in this condition.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

In his motion appellant argues but the proposition that the verdict was not such as could be made the basis of the judgment rendered. The complaint is not here presented by any bill of exceptions. In his motion for new trial appellant set up that when the jury returned their verdict of guilty, assessing a penalty of 2 years in the penitentiary, they also handed to the court another document, signed by their foreman, in which they recommended that after 12 months of good behavior in the penitentiary this appellant be given a pardon. If such document was handed to the court, it was not carried into the minutes nor made part of the judgment, but was properly held a matter beyond the power of the jury, and was rejected. We know of no proper way by which such recommendation could be thus made. If there was such separate paper handed to the court, and if the court failed to call the attention of the jury to the fact that they were exceeding their proper province, and the accused desired to take any advantage of such situation, he should have brought the matter to the attention of this court by a bill of exceptions complaining of the refusal of motion for new trial, or in some other manner. There is nothing in the complaint as here presented by appellant which we can consider.

The motion for rehearing will be overruled. 
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