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87 Tex. Crim. 71

219 S.W 827

Erwin v. State

Court of Criminal Appeals of Texas

Decided March 3, 1920

Court of Criminal Appeals of Texas · decided 1920-03-03

<p>1. —Aggravated Assault—Statement of Facts.</p> <p>Where the statement of facts was filed too late, the same could not he considered on appeal; however, it appearing on re-hearing, hy affidavit of appellant, that the same was presented to the trial judge within the time fixed by law, the same will be considered..</p> <p>2. —Same—Eecognizance—Practice on Appeal.</p> <p>Where, the appeal was dismissed on a former day of the term for want of sufficient recognizance, and thereafter a sufficient recognizance was supplied, the case is reinstated to be heard upon the record.</p> <p>3.—Same—Sufficiency of the Evidence—Charge of Court.</p> <p>Where, upon trial of aggravated assault, the evidence was sufficient to sustain the conviction, the court properly refused a peremptory instruction to acquit, and other requested charges being covered in the main charge which was applicable to the fact, the conviction is sustained.</p>

Decided 1920-03-03

¶1 ON REHEARING.

¶2 March 3, 1920.

LATTIMORE, Judge.

¶3 At a former term the appeal in this case was affirmed, and appellant presents the case at this time upon his motion for rehearing. The motion will be granted, to the extent of considering the statement of facts, as though the appeal had been originally properly perfected.

¶4 As originally presented, the appeal was without a statement of facts, it appearing from the record that the case was tried in the court below in January, 1919, and a statement of facts is presented which was filed in October, 1919; but the affidavit of appellant is before us, and not controverted, from which it appears that said statement of facts was presented to the trial judge within the time fixed by law for the approval and filing of such statement of facts, and we have, therefore, considered the same.

¶5 Appellant sought, by his special charge No. 1, a peremptory instruction in his favor, which was properly refused by the trial court.

¶6 By special charges Nos. 2 and 3, appellant sought instructions which were covered by the main charge. We are unable to agree with the contentions made in the exceptions reserved by appellant to the main charge, and believe the evidence sufficiently supports the verdict of the jury; and finding no error .in the judgment of the trial court, the same is again affirmed.

¶7 Affirmed.

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