*1 filing motion, of the there has been filed herein Since the containing supplemental transcript copy a certified the in- of dictment, not, defect did which shows that claimed therein fact, incorrectly copied in that indictment was in exist original transcript. appears copy subject it certified is
The indictment as to no defect. again challenges, earnestness, our much con-
clusion that facts warrant conviction. again light
The facts have been examined the con- of made, jury’s tentions and we remain convinced that conclu- guilt thereby. ion of was warranted must It be remembered testing sufficiency support of the a con- evidence to viction, province only is the of court to determine whether which, guilt there believed, evidence if shows the accused.
By verdict, jury, appellant guilty its found of the offense passing forged entering judgment upon instrument. In verdict, incorrectly adjudged appellant guilty the trial court forgery. of the offense is therefore reformed adjudge appellant guilty so unlawfully the offense of passing forged instrument, and the sentence is reformed to comply judgment. with the rehearing
The motion for is overruled.
Opinion approved by the court.
J. M. Tucker v. State. February 13, 1952. No. 25688. Rehearing 2, April Denied 1952.
Appellant’s (Without Rehearing Second Motion for Denied Opinion) April 30, Written 1952. *2 Presiding. Reed, Judge
Hon. Louis B. Perry City, Barber, by Perry Barber, Dell and Colorado O. appellant. George Cayton, Attorney, Lamesa, Karl P. District and Blackburn, Attorney, Austin, State’s for the state.
GRAVES, Presiding Judge. rape was convicted of an to assault with intent given years penitentiary, and a term of ten and he the state appeals from a based thereon. Operating Legislature, statute, under the new Acts of 52nd
Regular Chapter 465, p. 819, appellant presents Session a state- ment of question facts in provided and answer form as voluminous, containing statute. The statement of facts is rather pages, some read, carefully which find have and we been therein the many exception. basis of of find bills We also person prepared who question and the statement of facts in answer form prepare has failed to index as a thereof an of statement, prescribed in such as exception contained bills Legislature men- page 820 of Acts 3 on Section tioned. 25,613 State, No. recently v. Garza held cases of 25,637, State, No.
(Page 6, volume) v. Greenwood this volume) the entire (Page 58, would not search that we exception. The the bills of facts order to find statement excep- having separate present not seen fit to bills ruling tion, right do, com- had consider we cannot plained of which an taken. the state- facts herein show little distinction between
ment made witness the one made complaining admits he struck the *3 witness, female, guilt a and it insofar as assault affects his the contends, however, is concerned. insuffici- He that the facts are that, ent resisting utmost, to show she was him her and claims to that familiarity upon part. she invited certain her amount The facts show that she had been assaulted one. Her some body bruised, finally sufficiently was and she resisted be to having relieved purpose of his attentions his been ac- without complished. It contention as he out that soon as found that she was per- not inclined to submit to him and was a Christian son, he outcry, then desisted the of his own accord. As to an facts immediately show complaint upon that she made ar- no rival of her at husband their home about 5:30 in the aft- o’clock ernoon, but did prowler she at such tell him time that a had tried to highly enter the house and seemed to nervous at she be morning time. She told her husband next had oc- what curred, being her delay excuse for such her that she feared hus- band try testimony would to kill the The shows that her grounded fears appellant were well for did he shoot at the morning on that him, very as soon as near he located and came killing person by mistake, thinking another person such was the one who had assaulted his wife. think failure to her outcry According make good instant was based on reason. to the testimony, defendant’s own sault he as- committed some kind an upon lady. However, this it is his further contention that gone away voluntarily abandoned the assault and had because he had ascertained that she These matters was Christian. were jury charge. a proper submitted to under
Appellant one bill has in the record and that is to the grant failure of the court to him a in order continuance Williams, Jr. and Steve witnesses, James C. certain
to show having “an affair” with kind of Teague, some that he was oc- or four they him on three prosecutrix had seen and that at her home. casions Williams, Jr., were C. appellant and James It is shown that prosecutrix and
trying airplane sell to the husband to an It is before. or twice errand once home on had been to his parties, two these continuance that claimed in motion for a thought appel- they Teague, testify that would Williams have lady. to having This seems this lant was “an affair” with purpose of ob- a continuance been second motion for testi- taining testimony two witnesses. of these same present at mony was these witnesses shows that at one of least they that were both one time in further court it shows place, leav- persons, moving place oftentimes from to transient Williams, ing forwarding testimony of C. no James address. Jr., not have he would is found in and shows that the record appellant a con- testified in his as was claimed Teague would tinuance. The nor of neither Williams allegations appel- as forth in bear out the manner set having “an was lant’s motion for a continuance that Teague complaining affair” with The witness witness. alleges found, merely never and the motion for a continuance they expected Teague had show Steve witness, been to the and that is as far home of goes, except general as opinion “an affair” be- as to his ing present. Teague had claims that been *4 Steve him and sat in and in the car outside house while he went the stayed witness, prosecuting at the home of the the testi- but mony any does not show kind of affair” the two of “an between expected proven by In place, testimony them. the first to be the degree these two witnesses was not sufficient to show misconduct on the In the next witness. place, appellant the fact entered the Harden home while these sat in witnesses car on the outside would have no the bearing upon case, issue the in this such since visits were at other and complained different times from one of in the the indict- granted ment herein. If the court had the second continuance as requested by appellant, the we do think not the would admissible; admitted, have been even if had been it could weight determining ap- have had no the in with what motive grab- pellant face, lady acted when he struck when the he couch, bed her the hair her and threw on the and when body leaving privates bruised her about as well other her according abandoned, The mere fact that he bruises thereon. statement, intercourse with to his own his intent to have sexual lady, upon her would not if he initiated his attack be effective charged purpose Jur. with the 35 Tex. in indictment. See p. 803, 18, sec. and cases cited. properly over- We think the motion a continuance was ruled. finding jury
We think the intent with was warranted in made, which this attack intercourse which intent to have with by appellant’s this woman own statements was evidenced during struggle testimony, and in conclud- as shown her ing lady intended to have intercourse with the regardless of her his consent at time he initiated attack upon her. also think the facts themselves are sufficient to show woman, upon what intent struck this threw her bed, body finally the her, upon bruised her attack desisted may vigorous
which have been caused her resistance. being shown, No error will therefore be af- firmed.
ON FOR MOTION REHEARING. Judge.
MORRISON, rehearing, has filed a forceful to which seeking appeal, explain he attaches affidavit of counsel on absence of the the ment of index of his bills of in the state- controverting facts. We have been tendered affidavits Though question. on the accept allegations we aas fact all of the appellant’s affidavit, decisions, precluded under our we are from consideration of the index letter now tendered court. (Section We have held that statute of Article' 759 (a), P.) placed duty C. C. upon counsel to see that the state- ment of approving facts contained an index before same. The approval statement of facts before us bears the *5 represented counsel trial, who same at the and the contains no index. We call attention of the bar to the fact that question statute in prohibit does not counsel himself from preparing index, reporter so, in the event the fails to do making the same approval. of the statement of facts before facts and do not carefully the statement of studied
We have when he concludes that counsel in accord with find ourselves fair trial. receive a did not disposed Remaining properly of this cause we convinced that rehearing overruled. originally, appellant’s Abrego v. State. Cristobal 25,840. 7, 1952. May No. Presiding. Pardue, Judge Hon. G. V. Jones, Lubbock, Jones, by B.
Trout & Charles Blackburn, Attorney, Austin, George P. for the state. State’s WOODLEY, Judge. 802(c) the Penal is for murder under Art. conviction
Code; punishment, penitentiary. years appellant was intoxicated shows that state’s evidence highway public on in Lubbock and drove his County; Nash automobile doing side-swiped car driven Mr. while so wrong Robertson, side, crashed head-on then while still on into an “the Sheriff’s automobile referred