# Clarich v. State

> Court of Criminal Appeals of Texas · April 26, 1939 · 137 Tex. Crim. 282

URL: https://www.frixlaw.com/law-library/cases/3916040

## Case

- **Full name:** Christopher Clarich v. the State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 26, 1939
- **Citations:** 137 Tex. Crim. 282; 129 S.W.2d 291; 1939 Tex. Crim. App. LEXIS 399
- **Precedential status:** Published
- **Opinion:** Addendum by Hawkins
- **Judges:** Graves, Hawkins
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3916040

## Opinion text

ON MOTION FOR REHEARING.
HAWKINS, Judge.
Appellant takes the position that the evidence heard on the motion for new trial makes no issue on the question of the misconduct of the jury. In view of his contention we have again carefully gone over all of the testimony presented on the hearing of the motion for new trial. We are unable to agree that no issue of fact was raised by such evidence. The trial court decided it in favor of the State. The rule controlling is stated very clearly in Day v. State, 120 Texas Cr. R. 17, 48 S. W. (2d) 266 , as follows: “In cases where, as in the present instance, the evidence heard on the motion for new trial is conflicting as to the existence of the fact or circumstance upon which the claim of misconduct of the jury is founded, the decision of the trial judge is conclusive upon this Court unless from the record it is apparent that the trial judge was clearly wrong. Such is the rule that has prevailed since the beginning of our jurisprudence. Obviously, there is no other guide when the matter comes before the appellate court. The finding of the judge on conflicting evidence is analogous to the verdict of the jury upon the testimony. In each instance the result is binding on the court unless its unsoundness is demonstrated by the record.” We are of opinion the evidence here makes proper the application of said rule. Nothing is observed which indicates any abuse of discretion on the part of the trial court.
Appellant contends that bill of exception number two should be considered because he says the purported qualification to the bill by the court is in fact a contradiction thereof, and that under the authority of Cochrell v. State, 85 Texas Cr. R. 326, 211 S. W. 939 , it is entitled to consideration. We are inclined to the view that the statement upon which appellant relieso is out of harmony with the general rule that if appellant accepts and files a bill with a contradictory qualification he is nevertheless bound thereby. In view of the qualification it would not have been inappropriate for the trial judge to have refused the bill, but we apprehend he desired to apprise this Court that the incident complained of did occur but no exception was reserved thereto. When appellant accepted and filed the bill without exception to the qualification he became
*288
bound thereby. To support our present holding and that in our original opinion we cite the following cases, in which the qualification was in direct conflict with the bill, and in some of which cases opinions were written by the author of the Cockrell opinion (supra). Evans v. State, 132 Texas Cr. R. 556, 106 S. W. (2d) 299 ; Ralston v. State, 135 Texas Cr. R. 100, 109 S. W. (2d) 185 ; Powell v. State, 134 Texas Cr. R. 244, 114 S. W. (2d) 894 ; King v. State, 135 Texas Cr. R. 513, 121 S. W. (2d) 340 ; Dobbins v. State, 127 Texas Cr. R. 380, 76 S. W. (2d) 1057 ; LeFors v. State, 130 Texas Cr. R. 426, 94 S. W. (2d) 738 ; Yoakum v. State, 131 Texas Cr. R. 194, 97 S. W. (2d) 188 ; Blackerby v. State, 131 Texas Cr. R. 629, 101 S. W. (2d) 239 ; Barnett v. State, 123 Texas Cr. R. 423, 59 S. W. (2d) 389 ; Ray v. State, 116 Texas Cr. R. 575, 28 S. W. (2d) 1084 ; Wilhite v. State, 116 Texas Cr. R. 314, 27 S. W. (2d) 817 ; Jarman v. State, 112 Texas Cr. R. 239, 16 S. W. (2d) 130 ; Vardeman v. State, 106 Texas Cr. R. 378, 292 S. W. 546 ; Barnes v. State, 106 Texas Cr. R. 394, 292 S. W. 548 ; Smith v. State, 104 Texas Cr. R. 616, 286 S. W. 223 ; Walker v. State, 104 Texas Cr. R. 26, 282 S. W. 245 ; Brown v. State, 103 Texas Cr. R. 420, 281 S. W. 210 ; Hahn v. State, 101 Texas Cr. R. 491, 276 S. W. 287 ; Jones v. State, 89 Texas Cr. R. 6, 229 S. W. 865 ; Simmons v. State, 93 Texas Cr. R. 421, 248 S. W. 392 ; Stevens v. State, 68 Texas Cr. R. 282, 150 S. W. 944 . We have been at some pains to cite authorities because the announcement in Cockrell’s case (supra) is given some prominence in 4 Texas Jur., Sec. 192, p. 273. The general rule is stated correctly in Sec. 194.
Appellant renews complaint because the trial court refused his special requested charge number one. While said instruction was refused we observe that the trial judge adopted same and incorporated it in his main charge largely using the same language employed in the requested instruction, and generally following the very wording of the special charge. Hence, no error resulted to appellant in refusing to give the instruction in the form of a requested charge.
The motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3916040. Public record. Not legal advice.