Cook v. State

124 S.W.2d 154, 136 Tex. Crim. 68, 1938 Tex. Crim. App. LEXIS 19

Opinions

Christian, Judge.

The indictment under which appellant 'was convicted charged the offense of an assault with a prohibited weapon, and embraced averments showing that he had been previously convicted of two felonies less than capital. Because of repetition of offenses, the penalty assessed was confinement in the penitentiary for life. See Art. 63, P. C.

The evidence is deemed sufficient to support the judgment of conviction.

Appellant brings forward two bills of exceptions, which appear to have been filed too late to be entitled to consideration. The motion for new trial was overruled March 5, 1938, and on the same date an order was made granting appellant eighty days in which to file bills of exceptions. The bills above referred to were filed May 28, 1938, which was after the expiration ,of the time fixed in the order of the court. See Art. 760, C. C. P., Turner v. State, 97 S. W. (2d) 959.

The trial was had before a special judge. The record is silent touching his election, appointment, and qualification. When the trial is had before a special judge, it is imperative that the record show his election and qualification. Arts. 555 and 556, C. C. P.; Robertson v. State, 103 S. W. (2d) 759. Under the circumstances, we must reverse the judgment of conviction.

The judgment is reversed and the cause remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.