286 S.W. 1088 | Tex. Crim. App. | 1926
Lead Opinion
The state in its motion for rehearing calls our attention to the fact that while the court in his main charge instructed the jury as stated in our original opinion and failed to give special charge No. 1, as stated therein, yet that he did give special charge No. 4, which is in effect the same as special charge No. 1, which was refused. A further examination of the record convinces us that the state is correct in this contention and that we were in error in reversing the case because of failure to give said special charge No. 1.
Special charge No. 4, given by the court at the request of the appellant, fully instructed the jury to the effect that they could not convict the appellant unless they believe that the appellant treated or offered to treat W. F. Beavers, the party whom the complaint and information charged that he did treat. We deem it proper to say that the attorneys representing the state did not brief this question on original submission and the error in overlooking this special charge No. 4 was due to the peculiar manner in which the record shows that it was given.
Believing that we were in error in the original opinion the state's motion for a rehearing is granted and the judgment of the trial court is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been *70 examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
In his motion appellant does not question the correctness of our opinion on the state's motion for rehearing, but only urges that such motion was not filed in time, and that this court lost jurisdiction when the mandate was issued from this court and was filed in the lower court, hence was without authority to act on the state's motion. If the trial court had entered judgment in the case after the mandate reached there, and before its recall, the question would be serious. If we can consider the affidavit attached to appellant's motion for any purpose it only shows that an agreement for the disposition of the case was entered into but no order or judgment making it effective was ever entered or rendered. Ordinarily this court will not entertain motions filed by either the state or appellant after expiration of fifteen days from the date of the judgment on which rehearing is sought. (Fitts v. State, ___ Tex.Crim. Rep. ___,
Appellant's motion for rehearing is overruled.
Overruled.
