275 S.W. 1040 | Tex. Crim. App. | 1925
Lead Opinion
The appellant was indicted in Dallas County charged with murdering his brother, Sam Canterberry, and was tried and convicted in the Criminal District Court of said county of manslaughter, and his punishment assessed at five years confinement in the penitentiary.
The record discloses that there are no exceptions taken to the court's charge and no requested special charges presented. The record as presented to us contains only two bills of exception, numbered one and two.
Bill of exception No. 1, complains of the action of the court in permitting the State to introduce in evidence the written confession of the appellant. This bill fails to disclose the written confession complained of and for much of the testimony we are referred generally to the statement of facts. This court holds that it will not consider bills of this kind and that the bills which are presented to this court should be complete within themselves and manifest fully the error complained of. Hubbard v. State,
Bill of exception No. 2, complains of the action of the court in permitting the State to interrogate the defendant on cross-examination concerning a score on his leg. Thie entire bill is made up in question and answer form; under Article 846, C. C. P., this court is unauthorized to consider this bill.
This court in many decisions has upheld the Article, supra, and refused to consider bills in question and answer form, which doctrine is so well established now that it is really unnecessary to cite authorities in support thereof.
We have given this record as presented a careful examination and find no reversible errors therein, and are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.
Affirmed. *552
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
We discuss only a matter called to our attention by appellant's motion which was overlooked in our former opinion.
After defining murder and applying the law as it related to that charge the court told the jury if they found appellant guilty of any degree of homicide but had a reasonable doubt as to whether it was murder they would give appellant the benefit of the doubt, acquit him of murder and proceed to consider whether he was guilty of manslaughter. Then follows a charge explaining when homicide would be manslaughter. In applying the law as to that offense the court instructed the jury if by reason of the things enumerated appellant's mind was disturbed or excited to such extent as rendered it incapable of cool reflection and while in such state of mind he 'struck' deceased they would find him guilty of manslaughter. As this charge appears in the record before us the court omitted to tell the jury if appellant struck deceased and "killed him" under the circumstances related he would be guilty of manslaughter. No exception was taken to the charge by reason of the omission. The question for the first time is raised here, it being asserted that such omission is a fundamental error of which this court should take cognizance even in the absence of exception to the charge. As supporting this contention appellant cites the cases of Debth v. State, ___ Tex.Crim. Rep. ___
The motion for rehearing is overruled.
Overruled.