*1 Milton Jacob Hanna 1953. 26,391. Denied June Crow, James Canadian, D. Attorney, Austin, for the state.
DAVIDSON, driving This is a drunk convictiоn, punishment assessed aat fine of $150. The statement of prepared facts in this case wаs filed by judge under parties a certificate him that agree upon failed to a statement of facts. Such
was 759a, E., authorized Art. Vernon’s C. P.C. testified
Witnesses was drunk and an in- toxicated driving conditiоn when apprehended he was seen an public automobile highway. testimony Such warrantеd jury’s guilt. conclusion of
A bill appears complaining of the forth is set jury panel. The motion quash the motion to allegations of exception, and contains various in the bill *2 as certifiеd facts shown therein are those fact. Nowhere existing reflect otherwise does the rеcord as true. Nor motion. allegations the touching of introduced evidence was sought thеn, for review presented, our The matter to be allegations not do only the motion plеading. of stitutes The matters truth prove of The or establish the truth thereof. Jur., 4 Tex. complained mаnner, be, verified. of much in some 250, p. presents therefore, exception apparent, of It bill is that the nothing for review of court. judgment is affirmed.
Opinion approved by the court. MOTION REHEARING.
ON FOR MORRISON, Judge.
In what a forceful brief our attention tо has called of and Bill denominates his motion instructed verdict he. Exception holding State, 154 Tex. No. 2 and in Ross v. to our 79, says phraseology R. 225 Cr. 2d 189. He S. W. that the exception is bills of is In this he the two cases identical. Appellant overlooks, however, de- recent correct. sevеral more question. cisions of this court on the following
Bill of No. 2 contains the certificate judge: “The Court erred in ‘Not the defendant’s motion of Guilty’, part in- because the is evidence on the of the State charged. sufficient to convict . the defendant as . .” 707, State, Rep. 639, Tex. McGee v. 155 238 W. 2d Cr. S. we said: addition, arewe not bound certificate
where complained we hаye entire matter of before us iii Digest, bill. See the more Crimi recent cases cited in Texаs ” (4). nal Law 1111 holding
This State, was followed in S. 2d Watkins v. 239 W.
4
107, State, Mayberry 101, 156 2d Tex. Cr. R. 239 S. W. State, and in McCune v. 156 Tex. R. 2d Cr. S. W. State, and in Hudson v. 156 Tex. W. Cr. R. 245 S. 2d 259. very
In the recent сase Sublett v. #26,335, Rep. 627, (2d) 336, Tex. Cr. 258 S. W. only by
“We will be bound from the trial certificates court as question to fаcts. The was asked. This fact is certified in binding judge’s bill is on this Court. The trial conclusion ‘resulting implication’ binding tо the as Court. not on is they judge. The facts are before us as were before the trial right alоne pass upon reserve the what effect those the trial of the accused.” *3 bar, In the case at the statement of us facts which is before clearly appellant’s guilt. shows will nоt We be bound a clusion contrary. of the trial court to the
Appellant urges presentеd by that error is of the the action trial in quash jury panel. his motion to allegation observe that there proof is no that trial court intentionally arbitrarily declined to follow the outlined in Artiсle Vernon’s Ann. cited C. S. cases by appellant controlling, are therefore not and wе think Article 2108 authorizes the action of the trial court case. in. instant Ashlock 129 Tex. Cr. R. 88 S. W. 2d showing contingencies the absence of a that none of the existed which appoint commission, аuthorize the court to presumption prevails that the court acted in accordance express provisions with the statute, hence no reversible error is shown.”
Appellаnt has filed in this court a motion to strike the facts, alleging statement of presented that the sаme was not approval. to him for We observe it was incumbent filing approval secure the statement facts. He showing made no state- court that has. ment of facts on file herein is respect incorrect material agreed or that he had prosecuting attornеy ato state- ment of contrary thereto.. cause disposed properly Remaining thаt we convinced overruled, rehearing is
originally, appellant’s for motion rehearing bе entertained. will for no further motion Lee Litchfield Earl 26,395. May 27, 1953. (Without
Appellant’s Denied for Motiоn Opinion) Written Votaw, Votaw, Beaumont, Baldwin & E. B. *4 Attorney, Austin, for the state.
WOODLEY, sub- indictment which the case was The count of the , that, September. alleged jury appellant, on or about mitted II, 1952, County, Texas, then there . . did and Jеfferson burglar- force, fraud, night, unlawfully by at threats and and there" iously fraudulently and enter a house then and break occupied by Larvey, T. H. T. without the consent of said H. Larvey, him, and with the intent then and there of the said Litchfield, parts of Earl Lee to use his mouth on the sexual being, to-wit, Larvey, womаn, human Frances then another having copu- house, purpose and lation, against there said carnal peace dignity of the State.’.’ " charge, such Under indictment and the court’s appellant guilty burglary private of the offense of of found