No. 2841. | Tex. Crim. App. | Jun 24, 1904
Lead Opinion
Appellant was convicted of night-time burglary of a private residence and his punishment assessed at confinement in the *2 penitentiary for a term of five years. We have carefully examined the charge of the court, and it is altogether applicable to the facts proved upon the trial of the case. The motion for new trial urges various errors, which we do not think are well taken. Appellant filed an amended motion for new trial after the two days had elapsed for the filing of motion for new trial. The court sustained the motion of the district attorney and struck out the amended motion. Under the showing here, there was no error in this. Under article 819, Code of Criminal Procedure, it is within the sound discretion of the court to permit amended motions for new trial to be filed after the two days allowed by law have expired. For collation of authorities on this subject, see sec. 1154, White's Ann. Code Crim. Proc. Furthermore, after a careful review of the amended motion there is no matter relied upon for new trial not urged in the original motion, except what appellant terms newly discovered evidence. We do not think it comes within the rule of newly discovered evidence, and were we to consider said amended motion it would not change the result. No error appearing in the record, the judgment is affirmed.
Affirmed.
Addendum
The judgment herein was affirmed on June 24, 1904, at the recent Austin term. The motion for rehearing by appellant was received by the clerk of the court at Austin on July 11, 1904 — seventeen days after the rendition of the opinion. The motion was forwarded by appellant's counsel to one of the judges of the court for permission to file, but was not received by him in time to be forwarded to the clerk at Austin within the fifteen days. The motion was received by the clerk after the adjournment of the Austin term of the court. Article 1030, Revised Civil Statutes, provides: "Any party desiring a rehearing of any matter determined by said courts may, within fifteen days after the date of entry of the judgment, * * * file with the clerk of said courts his motion in writing for a rehearing thereof, * * * provided that should the court adjourn within less than fifteen days after the rendition of the judgment the motion may be made at such time and in such manner as may be prescribed by rules to be made by the Supreme Court." Rule 64, as prescribed by the Supreme Court, provides: "Where a Court of Civil Appeals adjourns for the term within less than fifteen days after the the rendition of judgment, the issuance of the mandate shall, unless otherwise ordered, be withheld until the expiration of said period; and, if, within that period, an application for rehearing shall be presented to the clerk of the court at that place, the issuance of mandate shall be further withheld to await the action of the court on said application."
Motion Dismissed.