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36 Tex. Crim. 38

34 S.W 926

Lega v. State

Court of Criminal Appeals of Texas

Decided March 18, 1896

Court of Criminal Appeals of Texas · decided 1896-03-18

This appeal is from a conviction for burglary, the punishment being assessed at five years’ imprisonment in the penitentiary. There is no statement of facts in the record.

Decided 1896-03-18

¶1 OH MOTION FOR REHEARING.

DAVIDSON, Judge.

¶2 Appellant’s motion for rehearing is based upon the assumption that the want of consent of William Evans, the alleged owner, was not shown on the trial. As stated in the original *40 opinion, the evidence is not before us, and the bill of exceptions does not show, or undertake to -do so, that his want of consent was not proved. Its only contention is that the court erred in permitting George Evans (the real, though not alleged owner) to testify that he did not give his consent to the taking of the property. If, in fact, William Evans did not testify to his want of consent, the bill of exceptions should have so stated. This it does not do. This court cannot supply omissions in bills of exceptions. See, Willson’s Crim. Stat., §§ 2368, 2616. Of course, the want of consent of William Evans was necessary to a conviction, as he was alleged to be the owner. If this was not shown in some way, the State failed to prove its case. But this court presumes that this was shown, in the absence of a contrary showing. The mere fact that George Evans was permitted to testify to his want of consent does not tend to prove that the want of consent of William Evans was not proved. The evidence of George Evans, in this respect, was immaterial. The motion for rehearing is overruled.

¶3 Motion Overruled.

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