*1 was not accorded the As to contention he days’ prepare for trial two writ- within which pleadings 514, C.C.P., waived the provided by ten he as insisting right when, thereupon on the to insist guilty. days provided pleaded Letterman two said he appearing, is affirmed. No reversible error Tommy Dalton Atkinson State 28,823. February 6, 1957. Rehearing State’s Motion for Overruled 1957. Martin, Houston,
W. E. appellant Walton, Dan White, District Thomas D. Assistant Attorney, Houston, Attorney District and Leon Austin, state.
MORRISON, Presiding Judge. possession gambling offense paraphernalia, 630, V.A.P.C.; punishment, Article jail. case, disposition recitation
In of our view necessary. will not deemed (cid:127)facts *2 Omitting follows: reads as parts, formal the indictment * “* * gambling para- permit knowingly did and there then phernalia situate and premises to remain on there there under control.” his the stat- apparent of readily It from an examination will charge a violation question not
ute in that this does indictment gravamen of the offense of law because the used for gambling equipment is “to be the statute is that interpretation gaming Any would purposes.” of law other every cards to remain a deck of make householder who allows clearly the in- guilty not was in his home under the act. Such legislature. tent of the Forms, Ed., 6th
Attention is directed to Criminal Willson’s 194, State, Texas 847, page which cites v. 118 Section Abraham State, 136, 42, Rep. Cr. 2d and France v. S.W. Rep. 608, Cr. 39 S.W. prose- the trial is reversed and the
The of cution ordered dismissed. FOR REHEARING
ON STATE’S MOTION WOODLEY, sufficient,
The state contend that does not the indictment challenges jurisdiction to hear of this court and deter- mine the given no
The contention is that valid notice of was during the the motion for new trial over- term which was ruled.
Relying provision citing upon the of Art. 755 V.A.C.C.P. and 508, State, 36, 288 Mahan v. 163 Texas 2d S.W. State, DeHay Rep. 576, Texas Cr. 2d 401, contends that the state motion for new trial July 19, 1956, during operation overruled of law was term of motion been filed June June being said June no notice term. showed, Mahan case would
If this the record was all support position. the state’s - shows, however, the motion
The that record further hearing during judge to the trial who set it for succeeding August term an amended term and and was of the court motion for new trial was filed with leave given. timely heard and notice and overruled timely pre- Had the amended for new trial not been DeHay upon by sented and acted case then the position. supra, support would the state’s question passed precise here not on in either of the cited cases and is: *3 a presented
Where trial motion for new is filed and is not by upon to trial court and acted within the time allowed V.A.C.C.P., Art. 755 thereafter au- trial court thority grant appellant to leave file an amended motion for new trial ? provides “A motion for new trial V.A.C.C.P. shall (10) days by filed
be within ten after conviction evidenced jury, may the verdict of the leave be amended any twenty (20) days at it is acted on within before it is Such motion shall be to the court after filed. (10) days original filing within ten after the of the or amended motion, twenty and shall be determined the court within (20) days filing original motion, after the or amended good may for filing amending cause shown the time or be extended court, delay but shall not of the appeal.” record on may provides
Art. 755 further that a motion for new trial expiration filed after of the term at which the conviction resulted, either new term court or in vacation. have especially
We concluded that the above portions, depriving the italicized cannot be construed as trial court of judgments control the term of rendered term, authority such and of the to hear and an determine amended motion for new trial filed with his leave.
The fact amended motion for new was filed timely with leave of the and that the amended motion was distinguishes Mahan overruled, case from this cases, Hay supra. and De amended open court when Notice of overruled, after it filed heard and six jurisdiction of the conferred leave recognizance on proper
court, appellant entered into day. rehearing is overruled. The state’s motion George Parr B. v. State 28,784. 20, 1957. *4 Corpus Jr., Jones, Foreman, Houston, E. Percy and Luther Christi, appellant. Attorney, Mullen, C. and John Burris, District H. Sam Attorney, Alice, Leon
County Austin,- the state.
DAVIDSON, threatening seriously take human conviction for This $1,500. assessed at a fine of life, punishment