293 S.W. 575 | Tex. Crim. App. | 1927
Lead Opinion
The unlawful transportation of intoxicating liquor is the offense, punishment fixed at confinement in the penitentiary for one year.
Appellant suggests that this court is without jurisdiction to determine the merits of the case. This view is based upon the fact that the appellant entered into a recognizance before the sentence was entered. He reasons that the effect of the recognizance was to defeat the jurisdiction of the trial court and thereby prevent the entering of the sentence, and that in the absence of a sentence this court is precluded by law from doing other than dismissing the appeal. The order overruling the motion for new trial bears the date of September 11, 1926, and the sentence bears the date of September 13, 1926. We understand that an appeal may be taken in a case less than capital only on the entry of the final judgment, which, according to the uniform construction of the statute, is the sentence. See collation of authorities in Branch's Ann. Tex. P. C., p. 338; also Vernon's Tex. C. C. P., 1925, Vol. 3, p. 150, note 3; Ridge v. State, 96 Tex.Crim. Rep.; Carlile v. State, 97 Tex.Crim. Rep.; Williams v. State,
The position taken by the appellant that the sentence is void because entered after the recognizance is untenable. It is not the recognizance, but the final judgment and notice of appeal, which give jurisdiction to the appellate court. The reasons for opposing a sentence are set out in Art. 773, C. C. P., 1925. These are the showing that the accused has received a pardon; that he is insane; that there has been no motion for new trial or a motion in arrest of judgment and that he desires to make one and has good grounds therefor; that he claims he is not the person convicted. *552
The state's evidence is direct and positive to the effect that the appellant unlawfully transported whiskey. The appellant's evidence presented an issue of fact. The verdict of the jury settled the conflict in favor of the State. We have been favored with no brief. An examination of the charge of the court fails to reveal any error requiring a reversal. There are no bills of exceptions complaining of the introduction of the evidence or other rulings of the court.
The judgment is affirmed.
Affirmed.
Addendum
In paragraph 6 of his motion for new trial there is contained an averment that during their deliberation the jurors discussed the appellant's failure to testify, and members of the jury stated that the appellant was of bad character. The motion for new trial is verified by the affidavit of the appellant but not otherwise supported. In the order overruling the motion for new trial, there is no recital that evidence was heard. Appellant insists that in that state of the record, on appeal, it is the duty of the appellate court to reverse the judgment. It is stated in Art. 757, C. C. P., 1925, that:
"The state may take issue with the defendant upon the truth of any cause set forth in the motion for a new trial; and, in such case, the judge shall hear evidence, by affidavit or otherwise, and determine the issue."
It has been held that to take issue under this statute a written pleading is not required. See Cade v. State,
The grounds upon which a motion for new trial may be granted are embraced in Arts. 752-757, C. C. P., 1925. It is declared that the grounds shall be distinctly set forth in writing, and where one of the grounds is newly discovered evidence, the practice in civil cases, which requires the verification of the motion, must be followed. See Shaw v. State, 27 Tex. Rep. 755; Glasscock v. Commissioner, 3 Tex. Rep. 51; Koontz v. State, 41 Tex. Rep. 570; White v. State, 10 Tex.Crim. Rep.; Gray v. State,
It has been said that where the record on appeal is void of evidence, that testimony other than that attached to the motion for new trial was heard, the presumption will be indulged that the court considered the affidavits which were made a part of the motion. See Cade v. State, 96 Tex.Crim. Rep.; Collins v. State, 95 Tex.Crim. Rep.; Washington v. State,
It is believed that the rule is none of the precedents mentioned control in the present instance for the reason that the appellant's affidavit verifying the motion for new trial sets up no detailed fact within his knowledge. It simply states his conclusion that certain things transpired in the jury room while the jury was in retirement deliberating upon his case. It is plain that these are matters about which he could not have testified if an oral inquiry had been made touching the merits of his motion. On the face of the motion, the averments are but hearsay. We are of the opinion, therefore, that in affirming the judgment upon the record before us, no violence was done to the rules of practice.
The motion for rehearing is overruled.
Overruled.
