Garrett v. State , 61 Tex. Crim. 514 ( 1911 )

At a former day of this term the judgment of the trial court was affirmed, and defendant now presents a motion for rehearing in said cause.

The first ground relied on is that the record fails to show that the venue was proven on the trial of the cause. In the case of McGlasson v. State, 38 Tex.Crim. Rep., it is held: "The amendment to article 904, Code of Criminal Procedure (Acts 25th Leg., p. 11), requires the court, on appeal, to presume that the venue was proved unless it is made affirmatively to appear to the contrary by bill of exceptions incorporated in the transcript. This would apprehend that before the court on appeal could hold that the venue was not proved, the court below must certify that the evidence did not establish the venue, or the bill of exceptions should contain all the evidence bearing on the same, and from this testimony it must appear that the venue was not proved." In this case there is no bill of exceptions, and this court must presume that the venue was proven.

The only other ground in the motion is that the evidence showed that defendant was guilty of an aggravated assault, if guilty of any assault. The verdict finds the defendant guilty of an assault, and that a less penalty was inflicted than the evidence might have justified is not such error of which defendant can complain.

The motion for rehearing is overruled.

Overruled.