Fletcher v. State

Court of Criminal Appeals of Texas

Fletcher v. State

39 S.W. 116, 37 Tex. Crim. 193, 1897 Tex. Crim. App. LEXIS 56

CourtCourt of Criminal Appeals of Texas

DecidedFebruary 17, 1897

DocketNo. 1258.

StatusPublished

Cited by10 cases

This text of 39 S.W. 116 (Fletcher v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fletcher v. State, 39 S.W. 116, 37 Tex. Crim. 193, 1897 Tex. Crim. App. LEXIS 56 (Tex. 1897).

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Opinion

DAVIDSON, Judge.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at confinement in the *194 penitentiary for five years. There is no statement of facts in the record. Appellant complains that he was forced to trial before the expiration of two days after the service of a copy of the indictment on him. There is no bill of exceptions reserved to the action of the court pertaining to this matter. On the contrary, the bill of exceptions shows that the attorneys, with the consent of the appellant, waived service, and consented, on the 6th day of October, to go to trial on the 7th of October, and on the 7th day of said month a jury was empaneled and sworn. The defendant announced ready, when J. C. Patton appeared in court, and asked that the trial be postponed until he could look into the case. This verbal motion to postpione the case for the piurpose of giving Mr. Patton time to examine the case was overruled. The court explains that Messrs. Scott & Hildebrand, counsel appointed by the court, had consulted appellant, and obtained the names of all the witnesses, and had process issued for them, and they were all piresent when appellant announced ready for trial, and all testified in the case. We see no reversible error in this. It appears from the record that the motion for a new trial was filed and overruled, and sentence ■ pronounced by the court. Subsequently the motion was reargued, and again overruled. Now it is complained that this was irregular. We find nothing wrong in this procedure. If the court, upion the reconsideration of the motion, had been of the opinion that it should have been granted, and had granted a new trial, this would have affected the sentence. See, Code Crim. Proc., 1895, Art. 819. It was not necessary to formally set aside the sentence before reconsidering the motion for a new trial. There is a sentence in the record which was never set aside, and is in full force and effect. We cannot pass upon the action of the court in refusing to grant a new trial upon the alleged newly-discovered testimony, in the absence of a statement of facts. Everything brought forward in support of the motion, in the shape of newly-discovered testimony, may be true, and yet the defendant be guilty of an assault with intent to murder; the rule being that, to authorize, a new trial upon newly-discovered testimony, it must be such as Would probably result in a different verdict. This court cannot pass up)on this question in the absence of a statement of facts. There is no bill of exceptions to the action of the court in permitting the State’s attorney to introduce record evidence of other cases in Dallas County, showing the defendant had been arrested. The rule is well settled that bills of exception must be reserved to the ruling of the court in admitting or rejecting testimony. In the absence of a statement of facts, this court cannot determine whether or not the verdict is not supported by the evidence. We find no reversible error in this record, and the judgment is affirmed.

Affirmed.

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DAVIDSON, Judge.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at confinement in the *194 penitentiary for five years. There is no statement of facts in the record. Appellant complains that he was forced to trial before the expiration of two days after the service of a copy of the indictment on him. There is no bill of exceptions reserved to the action of the court pertaining to this matter. On the contrary, the bill of exceptions shows that the attorneys, with the consent of the appellant, waived service, and consented, on the 6th day of October, to go to trial on the 7th of October, and on the 7th day of said month a jury was empaneled and sworn. The defendant announced ready, when J. C. Patton appeared in court, and asked that the trial be postponed until he could look into the case. This verbal motion to postpione the case for the piurpose of giving Mr. Patton time to examine the case was overruled. The court explains that Messrs. Scott & Hildebrand, counsel appointed by the court, had consulted appellant, and obtained the names of all the witnesses, and had process issued for them, and they were all piresent when appellant announced ready for trial, and all testified in the case. We see no reversible error in this. It appears from the record that the motion for a new trial was filed and overruled, and sentence ■ pronounced by the court. Subsequently the motion was reargued, and again overruled. Now it is complained that this was irregular. We find nothing wrong in this procedure. If the court, upion the reconsideration of the motion, had been of the opinion that it should have been granted, and had granted a new trial, this would have affected the sentence. See, Code Crim. Proc., 1895, Art. 819. It was not necessary to formally set aside the sentence before reconsidering the motion for a new trial. There is a sentence in the record which was never set aside, and is in full force and effect. We cannot pass upon the action of the court in refusing to grant a new trial upon the alleged newly-discovered testimony, in the absence of a statement of facts. Everything brought forward in support of the motion, in the shape of newly-discovered testimony, may be true, and yet the defendant be guilty of an assault with intent to murder; the rule being that, to authorize, a new trial upon newly-discovered testimony, it must be such as Would probably result in a different verdict. This court cannot pass up)on this question in the absence of a statement of facts. There is no bill of exceptions to the action of the court in permitting the State’s attorney to introduce record evidence of other cases in Dallas County, showing the defendant had been arrested. The rule is well settled that bills of exception must be reserved to the ruling of the court in admitting or rejecting testimony. In the absence of a statement of facts, this court cannot determine whether or not the verdict is not supported by the evidence. We find no reversible error in this record, and the judgment is affirmed.

Affirmed.

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Bluebook (online)

39 S.W. 116, 37 Tex. Crim. 193, 1897 Tex. Crim. App. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fletcher-v-state-texcrimapp-1897.

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