# Calyon v. State

> Court of Criminal Appeals of Texas · January 27, 1915 · 76 Tex. Crim. 83

URL: https://www.frixlaw.com/law-library/cases/3925099

## Case

- **Full name:** Harry Calyon v. the State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 27, 1915
- **Citations:** 76 Tex. Crim. 83; 174 S.W. 591; 1915 Tex. Crim. App. LEXIS 312
- **Precedential status:** Published
- **Opinion:** Dissent
- **Judges:** Davidson, Pbendebgast, Prendergast
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part by Means v. State, 100 Tex. Crim. 1 (1925).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3925099

## Opinion text

With some degree of regret I feel called upon to make a few remarks in reply to Judge Prendergast's "Additional Opinion."
Judge Prendergast refers to two cases in which I had the honor to write the opinions, Barber v. State, 35 Tex.Crim. Rep., and Hampton v. State, 63 Tex.Crim. Rep.. The correctness of those opinions I think hardly debatable, and their inapplicability to this case is also beyond question. In the Barber case there was a motion made for a new trial, unsupported by affidavit or offer to adduce testimony, on *Page 114
the ground of newly discovered testimony, and there was nothing brought to the attention of the court by which the court was informed of the newly discovered testimony except a mere statement in the motion for new trial. There was no offer by the defendant to support this by testimony, and no evidence offered to that effect, and besides it is stated in the opinion itself on page 73 of the volume cited, that the alleged newly discovered testimony was simply impeaching evidence. White's Ann. C.C.P., p. 757, sub. 8, for cases. All lawyers understand that impeaching evidence is not usually within the rule of newly discovered testimony, and does not usually authorize granting a new trial. In the Hampton case, supra, there was no attempt at verification of the allegation in the motion for new trial of the misconduct on the part of the jury, nor was there any offer to produce any evidence in support of the motion. The matter was presented merely as a ground of the motion. There was no request for process for witnesses. In this case an affidavit was filed by counsel. The affidavit was based upon information and belief that the misconduct occurred. I state it generally, without detail. On this affidavit of information and belief of the affiant request was made of the court for process to bring jurors to verify the statements made in regard to misconduct of the jury; at least it was sought to obtain their testimony to so prove. This the trial court refused. The Hampton case or the Barber case can not be authority in the instant case, especially as the statute provides the grounds of the motion can be heard by the court on "affidavit or otherwise." It was undertaken to get the jurors before the court to hear the testimony in regard to the misconduct of the jury, based on the affidavit of counsel in the case, which was refused. In the Barber and Hampton cases, supra, there was no affidavit made by anybody and no attempt in any way to get evidence before the court. In both cases the matter was left alone on the simple statement as a ground of the motion for new trial.
I do not, of course, believe in this case an affidavit was necessary. The jurors could as well have been brought before the court, and ought to have been produced. The affidavit on information and belief certainly ought to be legally sufficient basis for process for witnesses. Such affidavit can be and is basis for a criminal prosecution under the statute. Penal Code, 1911, art. 269, sub. 2, and note for cases. Certainly if the trial and conviction of the citizen can be had on affidavit, based on information and belief, etc., it ought to be amply sufficient to bring witnesses to prove accused has not had a fair and impartial trial. The accused shall have compulsory process for obtaining witnesses in his favor. Const., art. 1, sec. 10. The legality of his conviction was directly put in issue and he refused testimony to prove it.
I would not have filed this in reply to Judge Prendergast's "Additional Opinion" except for the fact that the two cases he cites have not been fairly construed or treated. *Page 115

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3925099. Public record. Not legal advice.