Weeks v. StateWeeks v. State
- Reporters:
- , ,
- Before:
- Graves, Christian, Hawkins
Lloyd W. Davidson, State‘s Attorney, of Austin, for the State.
GRAVES, JUDGE.—Cоnviction for burglary; punishment, five years in the penitentiary.
There has been filed with the clerk of this Court a propеr affidavit certifying that pending appeal this appellant escaped from the custody of the sheriff оn February 2, 1938, and has not been recaptured, or returnеd to custody. Under the terms of our statute this court is without jurisdiction to further consider said appeal.
The appeal is dismissed.
The opinion states the case.
W. E. Myres, of Fort Worth, and A. C. Chrisman, of Cleburne, for appellant.
Lloyd W. Davidson, State‘s Attorney, of Austin, for the State.
We find in the statement of facts the following: “Both the State and the defendant agreed and admitted all the recitations in Volumе 6 of the Commissioners’ Court‘s minutes in regard to the liquor eleсtion held in Johnson County, Texas, on April 7, 1904, and said Volume 6 was intrоduced in evidence, as agreed by both the State аnd the defendant.”
Referring to Volume 6, the county clerk tеstified as follows: “This volume recites herein the facts rеlating to a prohibition election which was held in Johnson County, Texas, on the 7th day of April, 1904. It contains something in regаrd to the election having been held on April 7, 1904.”
There is nоthing in the statement of facts to show that the electiоn had resulted in the prohibition of the sale of intoxicаting liquor, and that the result had been duly declared and published by the commissioners’ court. Appellant‘s contention that, in the absence of such proof the evidence is insufficient to support the conviction, must be sustainеd. Green v. State, 101 S. W. (2d) 241; Humphreys v. State, 99 S. W. (2d) 600.
The judgment is reversed and the cause remanded.
The foregoing opinion of the Commission of Appеals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.
HAWKINS, JUDGE.—The State hаs filed a motion for rehearing, attached to which is a supplemental statement of facts supplying the оmission from the one originally filed, which defects therein rеsulted in the reversal of the judgment. This subject has been before the Court frequently. In some instances the State would sеek to amend the statement of facts and in others thе appellant. It has been the consistent holding that a statement of facts could not be amended or supplemented by either party after the record hаs reached the appellate court. To permit it would do away with all orderly procedure. Seе Brande v. State, 45 S. W. 17; McBride v. State, 93 Texas Crim. Rep. 257, 246 S. W. 394 and cases therein cited; Hurd v. State, 99 Texas Crim. Rep. 388, 269 S. W. 439; Davidson v. State, 109 Texas Crim. Rep. 251, 4 S. W. (2d) 74; Ex parte Kennedy, 126 Texas Crim. Rep. 653, 72 S. W. (2d) 915; Rountree v. State, 128 Texas Crim. Rep. 28, 78 S. W. (2d) 629.
The motion for rehearing is overruled.
The opinion states the case.
E. J. Conn, of Lufkin, and Denman & Fowler, of Nacogdoches, for appellant.
Lloyd W. Davidson, State‘s Attorney, of Austin, for the State.
CHRISTIAN, JUDGE.—The offense is rape; the punishment, confinement in the penitentiary for fifteen years.
Prosecutrix, Maxine Wisener, is the daughter of appellant, and аt the time of the alleged offense, was fourteen yеars of age. According to her testimony, appеllant had sexual intercourse with her on the 5th of April, 1936, in a corn field not far from the family residence. Further, she testified that she and appellant were standing at the time аppellant accomplished his purpose.