Rountree v. StateRountree v. State
- Reporters:
- , ,
- Before:
- Christian
Lead Opinion
The offense is aggravated assault; the punishment, a fine of twenty-five dollars.
It does not aрpear that notice of appeal was recorded in the minutes of the court as required by law. This should appear from the certificate of the clerk. Art. 827, C. C. P. The aрpeal must be dismissed. Wheeler v. State, 42 S. W. (2d) 69.
The appeal is dismissed. Appellant is granted fiftеen days from this date in which to perfect the record.
Dismissed.
The foregoing opinion of thе Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION TO REINSTATE APPEAL.
HAWKINS, Judge.The appeal was dismissed at a former day of the tеrm, the record at that time failing to show‘that notice of appeal had been еntered in the minutes of the court. The record has been amended in that respect and the appeal is reinstated and the case will now be considered on its merits.
The third subdivisiоn of article 1147, P. C., provides that an assault and battery becomes aggravated “when the person committing the offense goes into the house of a private family and is therе guilty of an assault and battery.” The prosecution in the present instance is predicаted on the provision of the Code above referred to, and alleges that appellant “did go into *30the house of a private family, to-wit: the house of George Amos, аnd did then and there in and upon Frances Amos commit an aggravated assault and did then and there strike Frances Amos with her hand.”
We commend the attorneys for the State and apрellant for the form in which the facts are brought before this court. Instead of setting out the еvidence of the witnesses in detail they undertook to condense the facts as established. We feel, however, that by reason of their knowledge of the personnel of thе parties involved that they failed to make the statement of facts sufficiently full to support the conviction. The agreed statement of facts shows that Mrs. Amos gave evidencе to the effect that appellant came to her room and there struck her. It is аpparent that whatever transpired occurred in a room in an apartment hоuse, but nowhere in the agreed statement of facts does it appear that the rоom was one occupied by George Amos as alleged in the complaint and infоrmation, and neither does it show what relationship, if any, Mrs. Amos sustained to George Amos. The statement of facts does not even show that the Mrs. Amos who testified was the Frances Amos upon whom the assаult was alleged to have been committed. It is apparent that in the state of the rеcord indicated we can not permit the conviction to stand.
Two bills of exception appear in the record, but we deem it unnecessary to discuss them as the judgment must bе reversed on account of the insufficiency of the evidence, and the matters whiсh are made the subject of the bills will not likely occur upon another trial.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Rehearing
ON MOTION FOR REHEARING.
LATTIMORE, Judge.It is now made tо appear, by agreement of both appellant and the State, that the statement of facts on file herein is not correct; that by order of the trial court a corrected supplemental statement of facts was filed on January 15, 1935, and same is herе presented with the State’s motion for rehearing. We would be glad to consider same, but are confronted by the plain provisions of our statute, supported by decisions almоst without number, — that the statement of facts in all cases must be filed in the lower court within ninety days after notice of appeal, which statute would not be complied with if we attempted to consider the supplemental state*31ment of facts, the original statement оf facts having been’ filed in this case in June, 1934.
As additional reason for declining to consider such statement of facts, attention is called to the fact that we have consistently held that this court is without power to permit the amendment of a statement of. facts on file here. McBride v. State, 93 Texas Crim. Rep., 257; Hurd v. State, 99 Texas Crim. Rep., 388; Davidson v. State, 109 Texas Crim. Rep., 251, and authorities cited in opinion on rehearing; Ex parte Kennedy, 72 S. W. (2d) 915.
We think it should be here said that in none of the cases cited was it shown that correct statement of facts had been filed in the trial court within the ninety day period above referred to. If such showing had been made, and such statement had been properly brought herе, we would likely consider same.
Under the facts in this case we can not consider the supplemental statement of facts, and the State’s motion for rehearing will be denied.
Denied.