Zepeda v. State

7 S.W.2d 527, 110 Tex. Crim. 57

Opinions

Offense, possessing intoxicating liquor for the purpose of sale, penalty one year in the penitentiary.

In a motion to reinstate his appeal, the appellant presents a certified copy of the appeal bond, which under Art. 835, C. C. P., 1925, permitting an amendment of the bond, confers upon this court the jurisdiction of the appeal. There was a plea of guilty and proof of the offense was uncontroverted.

But one bill of exceptions is found and that deals with the argument of counsel for the State with reference to the issue of a suspended sentence. Appellant introduced testimony on the issue of his age. Several witnesses testified that they had no accurate knowledge as to his age, but estimated it as being from twenty-three to twenty-five years. His mother testified that he was twenty-four years old. The appellant said: "I guess I am over twenty-five years old." Counsel for the State, in his argument, told the jury in substance that upon the issue of age, the burden of proof was upon the appellant. An exception was reserved to these remarks, and the court was requested in a verbal motion to disregard them. The court, in overruling the objection, committed no error.

In the brief there is a discussion of the subject of insanity. It was recited in the judgment that the court was satisfied that the appellant was sane, and we fail to find any evidence to the contrary. The pertinency of the discussion of the subject and citation of authorities such as Burton v. State, 33 Tex.Crim. Rep., and Harris v. State, 172 S.W. Rep. 975, is not perceived. We will add that the cases last mentioned have been discussed at some length in the case of Taylor v. State, 88 Tex.Crim. Rep.; see page 478.

The order of dismissal is set aside, and the judgment of the trial court is affirmed.

Affirmed.

ON MOTION FOR REHEARING.