Lewallen v. State

Court of Criminal Appeals of Texas

Lewallen v. State

29 S.W.2d 371, 115 Tex. Crim. 144, 1930 Tex. Crim. App. LEXIS 382

CourtCourt of Criminal Appeals of Texas

DecidedFebruary 5, 1930

DocketNo. 12965.

StatusPublished

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This text of 29 S.W.2d 371 (Lewallen 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.

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Lewallen v. State, 29 S.W.2d 371, 115 Tex. Crim. 144, 1930 Tex. Crim. App. LEXIS 382 (Tex. 1930).

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HAWKINS, Judge.

Appellant was convicted of having unlawfully burned an automobile belonging to him, which was insured against loss or damage from fire; punishment assessed was two years’ confinement in the penitentiary. Prosecution is under Article 1322 P. C., revision of 1925.

After having introduced the facts and circumstances regarding the burning of the automobile the district attorney announced that he had an agreement “with the defense that it will be admitted in this particular case that the car that was burned there that day was insured against loss by fire.” Appellant himself testified that the car was insured but was not asked particularly with reference to the terms of the insurance nor what it covered. For the first time in this court appellant presents the proposition that the agreement above set out should be discarded by us on the ground that it does not affirmatively appear from the record that the agreement was made with appellant himself, and that without such agreement there is no evidence showing that the car in question was insured against loss or damage by fire. As supporting the proposition appellant cites Mullenex v. State, 98 Tex. Cr. R. 593; Eoff v. State, 75 Tex. Cr. *145 K 244, 170 S. W. 707, and Sullivan v. State, 83 Tex. Cr. R. 477, 204 S. W. 1169. We think the cases referred to are stronger against appellant than in his favor. The statement made by the district attorney appears in the statement of facts and we must presume it was made in open court in the presence of appellant and counsel representing him and that no objection whatever was interposed. So far as this court knows the agreement may in fact have been made with appellant in person. No reference whatever is made to the incident even in the motion for new trial. If it had been the trial court would have had opportunity to ascertain whether any ground existed why the agreement should not have been considered. The propriety of admitting before the jury the agreement in question was primarily for the trial judge; it having been received by him every presumption obtains in favor of the correctness of his ruling. We are in no position to review the question nor to discard the agreement in considering the case.

The only other point urged by appellant is a claim that the evidence generally is not sufficient to support the verdict. We deem it unnecessary to set it out here in detail. We have reached the conclusion that we would be unauthorized to disturb the verdict of the jury under the facts presented.

The judgment is affirmed.

Affirmed.

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HAWKINS, Judge.

Appellant was convicted of having unlawfully burned an automobile belonging to him, which was insured against loss or damage from fire; punishment assessed was two years’ confinement in the penitentiary. Prosecution is under Article 1322 P. C., revision of 1925.

After having introduced the facts and circumstances regarding the burning of the automobile the district attorney announced that he had an agreement “with the defense that it will be admitted in this particular case that the car that was burned there that day was insured against loss by fire.” Appellant himself testified that the car was insured but was not asked particularly with reference to the terms of the insurance nor what it covered. For the first time in this court appellant presents the proposition that the agreement above set out should be discarded by us on the ground that it does not affirmatively appear from the record that the agreement was made with appellant himself, and that without such agreement there is no evidence showing that the car in question was insured against loss or damage by fire. As supporting the proposition appellant cites Mullenex v. State, 98 Tex. Cr. R. 593; Eoff v. State, 75 Tex. Cr. *145 K 244, 170 S. W. 707, and Sullivan v. State, 83 Tex. Cr. R. 477, 204 S. W. 1169. We think the cases referred to are stronger against appellant than in his favor. The statement made by the district attorney appears in the statement of facts and we must presume it was made in open court in the presence of appellant and counsel representing him and that no objection whatever was interposed. So far as this court knows the agreement may in fact have been made with appellant in person. No reference whatever is made to the incident even in the motion for new trial. If it had been the trial court would have had opportunity to ascertain whether any ground existed why the agreement should not have been considered. The propriety of admitting before the jury the agreement in question was primarily for the trial judge; it having been received by him every presumption obtains in favor of the correctness of his ruling. We are in no position to review the question nor to discard the agreement in considering the case.

The only other point urged by appellant is a claim that the evidence generally is not sufficient to support the verdict. We deem it unnecessary to set it out here in detail. We have reached the conclusion that we would be unauthorized to disturb the verdict of the jury under the facts presented.

The judgment is affirmed.

Affirmed.

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29 S.W.2d 371, 115 Tex. Crim. 144, 1930 Tex. Crim. App. LEXIS 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewallen-v-state-texcrimapp-1930.

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