Moore v. State

88 S.W. 228 | Tex. Crim. App. | 1905

Lead Opinion

Appellant was convicted of assault with intent to murder, and her punishment assessed at confinement in the penitentiary for a term of two years.

There is but one bill of exceptions, which relates to the following: The district attorney in his closing argument said: "Gentlemen of the jury, defendant's attorney did not dare put defendant's character in issue." To which language defendant then and there objected, and asked the court to instruct the jury not to consider the same; and the court refused to so instruct the jury, and defendant excepted. The court explains this by bill saying, "the above language of the district attorney was made in reply to one of the attorneys for defendant, who said that defendant was a good woman, and did not use bad language like the prosecutrix." The explanation of the court disposes of any supposed error in the statement of which appellant could complain.

The evidence is sufficient to support the verdict of the jury; and the judgment is affirmed.

Affirmed.

ON REHEARING.
June 23, 1905.





Addendum

The judgment was affirmed, and is now before us on rehearing. Appellant in his motion calls our attention to the fact that the indictment alleges the assault occurred on the 13th day of September, 1904, and that it was presented by the grand jury and filed on November 3rd, 1904. Prosecutrix Francis Jones, in her testimony states, "She (defendant) shot me with a pistol on the 13th day of November, 1904." And also states, "This occurred in Fort Bend County, Texas, sometime in November, 1904." This is the only witness in the statement of facts showing when the assault occurred. So it appears from the evidence that the assault occurred some ten days after the *396 indictment was returned by the grand jury. It must be proved that the offense was committed prior to the presentment of the indictment. Clements v. State, 2 S.W. Rep., 379, citing Code Crim. Proc., art. 420. The motion for rehearing is accordingly granted, and the judgment is reversed and the cause remanded.

Reversed and remanded.