Bracher v. State , 72 Tex. Crim. 198 ( 1913 )

The motion for rehearing in this case undertakes to lay the blame for failure to secure a statement of facts on appellant's counsel. Appellant employed his own attorney, and if this attorney was negligent this will be attributed to him. The term of court at which appellant was tried lasted more than eight weeks. The appellant was sentenced February 24, 1913. The statement of facts was not presented to the judge until August 30, 1913. It was through no fault of the prosecuting officers, nor the district judge, that this delay occurred; consequently nothing stated in the affidavit of appellant filed would entitle him to have the statement of facts considered. But if we did consider it, the witnesses for the State positively identify appellant as one of those who robbed A.B. Clayton. Mr. Clayton positively swears he is one of the two men. While appellant undertakes to prove an alibi by J.B. Ivie and his daughter, yet everything they say could be true and yet he be the person who robbed Clayton. She says that she left home about 7:15 to go to town, and as she looked back she saw appellant and Arisman (the man who is said to have aided in the robbery) coming along after her. Clayton says he is not positive about the time he met appellant but it was about 7:15 and that he was robbed at about 7:30. There is no such discrepancy in the time and place of the robbery fixed as to render the testimony irreconcilable, and the court submitted the issue of alibi in the language frequently approved by this court. Hines v. State, 40 Tex.Crim. Rep.; Caldwell v. State, 28 Texas Crim. App., 566; Harris v. State, 31 Tex. Crim. 411; Stevens v. State, 42 Tex.Crim. Rep..

The alleged newly discovered evidence is supported by the affidavit of no person and no reason stated why such affidavit is not attached, and this, under such circumstances, presents no error. Love v. State, 3 Texas Crim. App., 501; Cotton v. State,4 Tex. 260; Evans v. State, 6 Texas Crim. App., 513.

If there was any variance in the "proof and the allegations contained in the indictment," no exception was reserved to the introduction of the testimony. But no such variance occurs. The indictment alleges that Mr. Clayton was robbed of ten dollars. Proof that he was robbed of more than ten dollars, — fourteen dollars, — would be no variance. Neither was it necessary for the indictment to allege denomination and kind of money.

If the jury was composed wholly of "talesmen" as alleged in the motion for a new trial, in the absence of any exception being reserved to the formation and organization of the jury, such fact would present no ground for reversal of the case. So, if we considered the statement of facts and every ground stated in appellant's amended motion for a new trial, no error would be presented.

Motion for rehearing overruled.

Overruled.