No. 1707. | Tex. Crim. App. | Apr 17, 1912
By proper indictment appellant was charged and convicted of the offense of unlawfully cursing and abusing a certain person, naming him, and that he did use violently abusive language to and concerning the said person under circumstances reasonably calculated to provoke a breach of the peace, and the jury assessed his punishment at a fine of $25.
The term of court at which he was tried, convened October 16, 1911, and adjourned November 4, 1911. No order was made, as shown by the record, authorizing a statement of facts to be filed after the court adjourned. There appears in the record a purported statement of facts which shows to have been filed November 14, ten days after adjournment. Before our attention was called to the fact that this purported statement of facts was filed too late to authorize us to consider it (Tom Hamilton v. State, and authorities therein cited, recently decided but not yet reported), we had carefully read and studied the whole statement of facts. Under the record, as it is presented to us, we can not properly review any of appellant's complaints on which he bases error in this case.
We have also carefully gone over appellant's brief in the case and heard at the time the case was submitted the interesting oral *299 argument of appellant's able attorney. Under the circumstances we will state the grounds of his complaint here. His first is, because of newly discovered evidence. This clearly is insufficient to have authorized a new trial. See Gray v. State, 144 S.W. Rep., 284, and authorities there cited.
The next ground is that the verdict of the jury is contrary to the law and the evidence and the punishment is unreasonable. Even, if under the circumstances, we could consider the statement of facts, it is our opinion that the great preponderance of the evidence was in favor of the State and against the appellant and as the punishment authorized by law is not less than $5 nor more than $100, under the circumstances, a fine of $25 is clearly not excessive.
The next ground is a complaint that the court did not charge a provocation might be considered in mitigation of the offense. And the only other ground of complaint is the refusal of the court to give his special charge requested by him. There is no requested charge in the record. It is the settled law of this State that in misdemeanor cases this court will not review any question as to the charge of the court or refusal to give special charges, unless the charge of the court is excepted to at the time and his bill of exceptions reserved thereto, or in case of refusal of special charges that defendant shall except at the time and present to this court by bills of exceptions. So that, as this matter is presented, no error whatever is shown. See Giles v. State, and authorities there cited, recently decided and many other cases recently decided by this court in which many cases are collated clearly establishing the law.
There appears sent up as a separate paper with the record, one bill of exceptions which was not originally included in the record, but which, by agreement of the parties is sent up to be considered the same as if a certiorari had been granted and it properly brought up. We have also considered this bill. It is to some remarks of the county attorney, but the bill itself does not show a sufficiency of what occurred to require this court to consider it, or to show any error. Conger v. State,
There being no reversible error presented, the judgment will be affirmed.
Affirmed. *300