145 S.W. 590 | Tex. Crim. App. | 1912
Appellant was indicted, tried and convicted of making an assault on one Ed McKenney with the intent to murder him, and his punishment assessed at five years imprisonment in the penitentiary.
Appellant insists he should be granted a new trial on account of newly discovered evidence. The attorney who represented appellant on the trial of the case, took the affidavits attached to the motion for new trial, the affidavits being made by the mother and father of appellant and Mr. Proudfoot. This court has held in an opinion by Judge Davidson (Maples v. State,
The ground "that the court erred in failing to charge the law of self-defense, there being ample evidence in this case to warrant the delivery of such charge," is not supported by the record. The charge as copied in the record, and verified by the court's signature, has a full and fair charge on self-defense and instructed the jury to acquit defendant if the prosecuting witness had made an attack which caused defendant to have a reasonable expectation or fear of death or serious bodily injury. Defendant testified to a direct attack, and the court submitted that issue.
The ground that the court "erred in compelling defendant to go to trial in this cause without giving him sufficient time to prepare his defense," presents no error. The offense is alleged to have occurred on April 1, and appellant was arrested that day; the indictment was returned on April 19, while the trial did not take place until May 2 following. No motion for continuance or postponement is in the record, or any fact presented in a manner we can consider it, that would authorize us to review the matter.
The ground that the indictment does not charge an offense is not well taken. The indictment reads: "That on or about April 1, 1911, in the county of Bexar and State of Texas, defendant, Abel Garza, with his malice aforethought, did unlawfully make an assault in and upon Ed McKenney, with the intent then and there to kill and murder the said Ed McKenney, contrary to the statute and against the peace and dignity of the State." This form has been frequently approved by this court. Smith v. State,
This disposes of all grounds presented in the motion for new trial. Affidavits, certificates and letters filed in this court, and not contained *479 in the record, which relate to no matter occurring on the trial, can not be considered by us. We must pass on the case as presented by the record on appeal, and if matters have occurred since the trial of the case, and the adjournment of the term of court at which appellant was tried, our statute provides no way for such matters to be made part of the record on appeal. They may present grounds for executive clemency, but the pardoning power, or power to commute a sentence is not conferred on us, but we, under the law, only review the trial as had in the court below.
The court submitted the issues of assault to murder, aggravated assault and self-defense, and applied the doctrine of reasonable doubt as to degrees, and the whole case, and to which charge no exception was reserved either in the motion for new trial or by bill of exceptions.
The judgment is affirmed.
Affirmed.