141 S.W.2d 652 | Tex. Crim. App. | 1940
Lead Opinion
The offense is murder; the punishment, confinement in the penitentiary for ten years.
It was alleged in the indictment, in substance, that appellant, with malice aforethought, killed Bertha Ross by • shooting her with a gun.
The homicide occurred during the afternoon of June 20, 1937. Witnesses for the State testified that appellant shot deceased with a shotgun; that at the time appellant shot deceased deceased was making no demonstration of any character; that deceased was standing across the street about ten feet from appellant when appellant shot her.
According to appellant’s testimony, she and deceased had had a quarrel over some whisky several hours prior to the homicide. At that time deceased cursed her. Deceased’s companion, Bud Young, threw her (appellant) on the bed and beat her. She reached under her pillow and grabbed her pistol, but Bud Young took the pistol away from her, and he and deceased left the scene of the difficulty. Appellant testified further that several hours later she was on the porch of her home when she observed deceased walking across the street; that deceased said as she approached, “I am going to kill that G-d- s-of-a-b-;” that as deceased approached she (appellant) entered the house and hooked the screen door; that she told deceased not to come any closer, but deceased continued to advance; that as deceased came through the gate, saying that she was going to kill her, she (appellant) opened the screen door and shot deceased. Appellant testified that it was her purpose, in shooting at deceased, to scare her.
Witness for the State testified that deceased was not armed at the time she was shot.
Appellant leveled no exceptions at the charge of the court.
The record embraces three bills of exception which appear to have been filed November 22, 1939. The motion for new trial was overruled September 25, 1939, and on the same date appellant gave notice of appeal, and was duly sentenced. No order was entered at the time the motion for new trial was overruled granting an extension of time to file bills of exception. The term at which appellant was convicted continued for more than eight weeks. Under such circumstances, the bills of exception are required to be filed within thirty days
It follows from what we have said the bills of exception were filed too late, and therefore cannot be considered.
We deem the evidence sufficient to support the judgment of conviction.
The judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Rehearing
ON MOTION FOR REHEARING.
Appellant has filed a motion for rehearing supported by the affidavit of her attorney to the effect that she applied to the trial court on the 9th day of November, 1939, for an extension of time within which to file the bills of exception and statement of facts. While the statement of facts, as the same appears in the record here, fails to show that it was filed with the clerk of the trial court, still it was forwarded to this court by the District Clerk and was filed by the clerk of this court on the 26th day of December, which was 92 days after the order of the court overruling the motion for a new trial. The clerk made an affidavit stating that if the statement had not been filed with him, he would not have forwarded it to this court. If the statement of facts was really handed to the clerk for filing, it was in contemplation of the law filed, and it must have been filed prior to the 24th day of December, because the
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.