Tanner v. State

74 S.W.2d 981, 127 Tex. Crim. 69, 1934 Tex. Crim. App. LEXIS 310

• Court: Court of Criminal Appeals of Texas
• Decided: June 6, 1934
• Docket: No. 16609.
• Status: Published

Opinions

CHRISTIAN, Judge.

— The offense is assault with intent to murder; the punishment, confinement in the penitentiary for three years.

At the time the motion for new trial was overruled and notice of appeal given no order extending the time allowed by statute for filing bills of exception was entered. The court having a term of less than eight weeks, under the provisions of article 760, C. C. P., appellant had 30 days from the date of adjournment, in the absence of an extension order, to prepare and file his bills of exception. The term at which appellant was convicted adjourned October 14, 1933. Appellant had 30 days from the date mentioned in which to file his bills of exception. On December 2, 1933, the court entered an order attempting to extend the time 30 days for filing said bills of exception. Manifestly, this order was entered after the expiration of the time fixed by statute for the filing of said bills. This being true, the court was without power to enter the order. Beard v. State, 48 S. W. (2d) 992. The bills of exception were filed December 26, 1933, which was too late.

The injured party, John Ross, testified, in substance, that appellant shot him with a pistol. According to his version, he did nothing to provoke appellant to commit the assault. The testimony on the part of the State was to the effect that the injury was serious. Appellant denied that he shot Ross.

The sentence is reformed in order that it may show that appellant is condemned to confinement in the penitentiary for not less than 1 nor more than 3 years.

As reformed, the judgment is affirmed.

Reformed and 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.