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91 Tex. Crim. 304

240 S.W 920

Crane v. State

Court of Criminal Appeals of Texas

Decided March 22, 1922

Court of Criminal Appeals of Texas · decided 1922-03-22

<p>1. —Burglary—Requested Charges—Practice in Trial Court.</p> <p>It must be made to appear on the record that requested charges were timely presented, and where it is not shown that they were presented to the trial judge before his main charge was read to the jury, they cannot be considered on appeal. Following Castleberry v. State, 88 Texas Grim. ,Rep-> 502, and other cases.</p> <p>2. —Continuance—Co-defendant—Evidence—Practice in Trial Court.</p> <p>•' -Where the absent testimony was not available to the defendant, because the alleged witness was his co-defendant, there was no error in declining to delay the trial under the circumstances.</p> <p>3. —Same—Severance—Continuance—Practice in Trial Court.</p> <p>Where it appeared, from the record on appeal, that granting the defendant’s request for severance would have operated as a continuance, the court properly overruled’ the application.</p> <p>4. —Same—Evidence—Remarks by Court—Trial Judge.</p> <p>Where, upon trial of - burglary, defendant sought to prove by certain witnesses the location of the switches in the packing house by which the lights were turned on, and the court in refusing such testimony remarked ’ that anyone could step in and strike a match and find the switch, etc., and therefore that the testimony was immaterial, there was no reversible error in the instant case. However, trial judges are admonished to refrain from expressing an opinion.</p> <p>5. —Same—Evidence—Voluntary Statements of Co-Defendant—Witness.</p> <p>Upon trial of burglary there was no error in excluding the voluntary statement of the co-defendant made at an examining trial, as the co-defendant could not have testified himself.</p> <p>6. —Same—Charge of Court—Entry—Breaking—Force—Caution Suggested.</p> <p>Where, upon trial of burglary, the State’s testimony showed entry unquestionably effected by force, there was no error in the court’s charge, in the instant case, in his reference to his entry, although isolated the same would have been error; but, given in the connection that it was, under the court’s definition of breaking and force, and further that the entry must be made by force directly applied to the house and with the intent to commit the specific crime of theft, there was no reversible error. However, the courts are admonished to use caution in framing a charge upon burglarious entry.</p> <p>7. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of burglary, the evidence was sufficient to sustain the conviction, there was no reversible error.</p> <p>8. —Same—Rehearing—Written Exceptions to Charge of Court.</p> <p>A written exception to the charge of the court signed by the attorneys for the defendant reciting that it was presented to the trial judge before the e main charge was read to the jury, which recital was not verified by the trial judge, cannot be considered on appeal.</p> <p>9. —Same—Bills of Exception—Burden on Appellant—Presumption.</p> <p>The burden is upon the appellant to show by bills of exception that an error has been committed, unless he does so the presumption upon appeal is in favor of the correctness of the trial court.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1922-03-22

How this case has been cited

Cited by 13 later decisions — most recently June 1978

12 state decisions

90192219301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1 on rehearing.

¶2 April 26, 1922.

MORROW, Presiding Judge.

¶3 —A re-examination of the record reveals the inaccuracy of appellant’s contention in his motion for rehearing that his general exception to the charge was such as to demand consideration.

¶4*310 There is found in the record a written exception to the charge, signed by the attorneys for the appellant, reciting that it was presented to the trial judge before the main charge was read to the jury. This recital, however, is not verified by the trial judge. There is no certificate from him showing that it was ever presented to him. The exception to the charge is a bill of exceptions, and requires verification by the trial judge to authorize its consideration upon appeal. Without such certificate of approval, it cannot be considered. This rule is statutory. See Vernon’s Sayles’ Texas Civil Statutes, Articles '2063 and 2066. It has uniformly been given effect in this court. See Hill v. State, 10 Texas Crim. App. 673, and other authorities collated in Vernon’s Texas Crim. Statutes, Vol. 2, p. 554, subdivision 33.

¶5 That we cannot consider the exceptions to the charge is the subject of regret, but the law requiring the certificate of the trial judge to a bill of exceptions as a predicate for its consideration is imperative and binding alike upon the litigant and the court. In determining that there was no certificate to the "bill in the instant case, this court indulges in no presumption but acts upon a patent fact and must deal with the record as it is found.

¶6 The requirement that exceptions to the court’s charge and the refusal of special charges shall show, that the objections were made to the special charges presented before the charge of the court was read to the jury, but gives effect to the mandate of the statute. See Article 737, Code of Crim. Proc. This construction of the statute has been made and applied with uniformity. In our opinion, it is a reasonable rule, easily complied with, and is in consonance with the general rule that bills of exceptions must manifest the error complained of. Walker v. State, 9 Texas Crim. App. 200, and cases collated in Branch’s Texas Ann. Penal Code, Sec. 207.

¶7 The burden is upon the appellant to show by bills of exceptions that an error has been committed. Unless he does so, the presumption upon appeal is in favor of the correctness of the trial court. There was no error in applying these established principles to the case in hand.

¶8 Upon each of the other matters to which the motion for rehearing relates, the views of this court are expressed in the original opinion. In our judgment, a correct disposition of the case has been made.

¶9 The motion for rehearing is overruled.

¶10 Overruled.

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