Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 449
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1875.] SMITH v. THE STATE. 449
Opinion of the Court.
"sworn as a witness, and give his evidence publicly in court."
A searching cross-examination may show the juror himself, as
well as others, that he misconceived the fact, or that it was not
as he understood it. And if not that, the party to whom it is
unfavorable, when it is thus publicly brought into the trial,
may rebut it, or avoid its effect by other evidence, and his
counsel may be heard to discuss it.
The very object of introducing this rule in the English
courts was to prevent the jurors from acting, as they formerly
did, upon undisclosed facts within their own knowledge while
on the jury. (3 Black. Corn., 374-5.)
Our Code of Criminal Procedure certainly contains no express
provision for such a proceeding, as a means of giving information
to the jury upon which they are justified in acting,
and the form of their oath, "a true verdict to render according
"to the law and evidence," would seem to exclude such a
mode, unless it be a species of evidence known to the common
law, and not prohibited by our statute law. Our Code says
that, " The rules of evidence known to the common law of
"England both in civil and criminal cases, shall govern in the
"' trial of criminal actions in this State, except where they are
"' in conflict with the provisions of this Code or of some statute
" of the State." (Paschal's Digest, Article 3103.)
At common law, inspection was a mode of trial by the court
(and not by the jury), of certain facts, such as that a person
was a minor, or alive, and the like, and of course had no reference
to such a thing as this now under consideration. (3
Black. Corn., 331; 6 Bacon, 631. "Trial.")
In a trial by a jury at common law, it is said, that evidence
is of two kinds, either that which is given in proof, or that
which the jury may receive by their own private knowledge.
(3 Black. Corn., 367.) The latter kind is not permitted in
modern practice, except perhaps as derived from a "' view " of
the premises in a suit about real estate, in order to ascertain its
identity and other circumstances. (3 Black. Com., 375. As
to " view," 3 Black. Corn., 299-300.)
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/457/: accessed June 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .