
    HEFFNARN v. STATE.
    (No. 8021.)
    (Court of Criminal Appeals of Texas.
    March 26, 1924.)
    • 1. Criminal [aw 092(6) — Bill of exception filed within 30 days after adjournment of term held timely.
    A bill of exception not filed during the trial term which was in session less than eight weeks, but within 30 days after adjournment, complaining of the court’s action in sustaining a demurrer to a motion for a new trial and in refusing to grant process for all jurors, held timely under Code Cr. Proc. 1911, art. 845.
    2. Criminal law <@=3925i/a(3), 959 —Sustaining of demurrer to motion for new trial and refusal to grant process for jurors held reversible error.
    Where a motion for a new trial alleged that while in retirement two jurors made statements, specifically set out, hurtful to defendant, and that other jurors discussed defendant’s character as a bad and law-breaking man and averred that such information came to defendant’s attorney from conversations with various jurors, and where, accompanying such motion, was a written request that the court grant process for all jurors, held, that the court’s refusal to grant such process and his sustaining of a demurrer to the motion was reversible error.
    <§=jEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Menard County; J. H. McLean, Judge.
    John Heft'narn was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed.
    Elack & Flack, of Menard, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Menard county of unlawfully carrying a pistol.

There is but one bill of exceptions in the record, consideration of which is objected to by the state on the ground that it was filed in the court below too late. The .trial term of said court was in session less than eight weeks and adjourned April 6th. Said bill was filed on the 19th of the same month. Article 845, C. C. P., allows 30 days after adjournment of the trial term when it is less than 8 weeks in duration, in which to file bills of exception, and unless the bill before us be one comprehended by the opinion in Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, or those cases which follow it, and be under said authorities required to be filed during the trial term, we must hold it properly filed.

Appellant made a sworn motion for a new trial setting up that while in their retirement two jurors made statements specifically set out in said motion and of such character as to necessarily be hurtful to appellant’s case, and that the other jurors discussed generally the character of appellant as being that of a bad and law-breaking man. It was averred iff the motion that this information came to appellant’s attorney from conversation^ had with various ones of said jurymen. Accompanying the motion for new trial was the written request of appellant that the trial court grant to him process for all the jurors who were named in the request in order that by their presence and testimony upon the hearing of the motion the allegations thereof might be verified and a new trial obtained. The state controverted the motion and demurred to the sufficiency of its allegations as too general, as not setting up that any juror was affected by the statements set out, as not stating facts showing that the verdict of the jury was influenced by such statements, also denying generally the allegations of said motion. The learned trial judge sustained the demurrer and in his order overruling tlie motion expressly denied the prayer for process.

The presence of jurors as witnesses, upon the hearing of a motion for new trial sought because of misconduct of the jury, may be of the utmost moment to one convicted of crime, and we have no doubt of his right to compulsory process for them such as is guaranteed every accused person by our Bill of Bights. That he should apply to the court for an order for such process seems entirely proper, and evidently was so considered by the learned trial judge in this case; his decision denying the prayer for process not being based on any failure of the accused to apply direct to the clerk. We do not attach such importance to the failure to allege in the motion that the conduct and statements of the jurors influenced the verdict, as to believe that for such failure the court below might refuse to hear the evidence or to grant the request for process. When facts are set out as having transpired in the jury room which would be obviously hurtful, neither the trial court nor this court would be concluded by a pleading in the nature of a demurrer that the motion did not state that such facts did or did not influence the verdict, any more than it would by a statement on the hearing by a juror that such obviously hurtful fact did not influence his decision. If the motion set out the facts which transpired in the jury room, and be sworn to and such facts be, sufficient to throw doubt on the fairness of the trial, and the court be properly requested to hear the facts or to grant process to bring before it the testimony, the court should by all means aid in arriving at that which is and should be the aim of all courts and court procedure, viz., the truth. The error of the state in objecting to the consideration of this bill of exceptions is based on failure to observe that it is not aimed at the insufficiency of the testimony to support a ruling of the trial judge upon evidence heard, but the complaint here is directed at the action of the court in sustaining the demurrer of the state and in refusing to issue process to bring the jurors before him in order to ascertain from their testimony what the real facts were. The ruling in Black v. State, supra, and those cases which follow it, relates solely to statements of fact and bills of exception setting out the facts heard by the trial court in connection with the motion for new trial. We have no desire to extend the rule in the Black Case beyond the subjects to which the rule has heretofore been confined. In our opinion the facts stated in the motion for new trial, if true, would call for a favorable'ruling upon the motion. We think the demurrer improperly sustained and that the process should have been issued. It might be that upon a hearing the allegations in the , motion might not have been supported, but that is a different question. For authorities indicating the attitude of this court heretofore upon these questions, see Kannmacher v. State, 51 Tex. Cr. R. 118, 101 S. W. 238; Bonds v. State, 71 Tex. Cr. R. 408, 160 S. W. 100.

It follows that we have considered the bill of exceptions and are of opinion that it shows error, and that for said error the judgment must be reversed, and the cause remanded, and it is so ordered.  