Myers v. State

Court of Criminal Appeals of Texas

Myers v. State

3 S.W.2d 438, 109 Tex. Crim. 130, 1928 Tex. Crim. App. LEXIS 153

CourtCourt of Criminal Appeals of Texas

DecidedFebruary 29, 1928

DocketNo. 11371.

StatusPublished

Cited by5 cases

This text of 3 S.W.2d 438 (Myers 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

Myers v. State, 3 S.W.2d 438, 109 Tex. Crim. 130, 1928 Tex. Crim. App. LEXIS 153 (Tex. 1928).

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Opinion

CHRISTIAN, Judge.

The offense is robbery, the punishment confinement in the penitentiary for ten years.

Silas Hart was robbed in his store of the sum of $125. The offender, by placing Hart in fear of his life, forced him to open the cash register. The robbery occurred between 9:30 and 10 o’clock at night. Hart and two pther witnesses who were present identified appellant as being the offender. Appellant did not testify, but introduced testimony to the effect that he was .at another place at the time the offense was committed.

No bills of exception are found in the record.

The record contains a first application for a continuance, which has noted thereon, over the signature of the trial judge, the following:

“The above motion heard and overruled June 28, 1927, to which action of the court the defendant then and there excepted.”

A formal order overruling the application showing that appellant excepted also appears of record. The motion for new trial *131 was based in part on the overruling of the application, and appended thereto were the affidavits of the absent witnesses.

The action of the court in overruling the application for a continuance will not be reviewed on appeal in the absence of a bill of exception in respect thereto. Branch’s Ann. P. C., Sec. 304; Nelson v. State, 1 Tex. Crim. App. 44; Bray v. State, 276 S. W. 244. An order taken from the minutes reciting that the court overruled the application and that appellant excepted is not sufficient. Wesley v. State, 131 S. W. 1107. Nor will the complaint in the motion for a new trial suffice. Branch’s Ann. P. C., supra. Furthermore, the notátion on the application to the effect that appellant excepted to the action of the court in overruling said application will not take the place of a proper bill of exception.

The evidence being sufficient to support the conviction, the judgment is affirmed.

Affirmed.

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.

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CHRISTIAN, Judge.

The offense is robbery, the punishment confinement in the penitentiary for ten years.

Silas Hart was robbed in his store of the sum of $125. The offender, by placing Hart in fear of his life, forced him to open the cash register. The robbery occurred between 9:30 and 10 o’clock at night. Hart and two pther witnesses who were present identified appellant as being the offender. Appellant did not testify, but introduced testimony to the effect that he was .at another place at the time the offense was committed.

No bills of exception are found in the record.

The record contains a first application for a continuance, which has noted thereon, over the signature of the trial judge, the following:

“The above motion heard and overruled June 28, 1927, to which action of the court the defendant then and there excepted.”

A formal order overruling the application showing that appellant excepted also appears of record. The motion for new trial *131 was based in part on the overruling of the application, and appended thereto were the affidavits of the absent witnesses.

The action of the court in overruling the application for a continuance will not be reviewed on appeal in the absence of a bill of exception in respect thereto. Branch’s Ann. P. C., Sec. 304; Nelson v. State, 1 Tex. Crim. App. 44; Bray v. State, 276 S. W. 244. An order taken from the minutes reciting that the court overruled the application and that appellant excepted is not sufficient. Wesley v. State, 131 S. W. 1107. Nor will the complaint in the motion for a new trial suffice. Branch’s Ann. P. C., supra. Furthermore, the notátion on the application to the effect that appellant excepted to the action of the court in overruling said application will not take the place of a proper bill of exception.

The evidence being sufficient to support the conviction, the judgment is affirmed.

Affirmed.

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.

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3 S.W.2d 438, 109 Tex. Crim. 130, 1928 Tex. Crim. App. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-state-texcrimapp-1928.

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