McKinley v. State , 152 Tex. Crim. 167 ( 1948 )

We have concluded that appellant is entitled to have the action of the trial court in overruling her first motion for continuance reviewed by this court.

The motion, as presented and relied upon, was not a statutory motion, because of the absence of an allegation therein that the witness was not absent by the procurement or consent of the appellant or that the application for continuance was not made for delay.

Such allegations are required by the express provisions of Art. 543, C. C. P. in order to be a statutory motion for a continuance, and without which the motion is fatally defective. See Art. 543, Vernon's C. C. P., notes 28 and 29, for attesting authorities.

Not being a valid statutory motion for continuance, it was one addressed entirely to the discretion of the trial court. While the record reflects equitable grounds for granting the motion, yet we cannot say that, in the light of the record as a whole, the trial court abused the discretion lodged in him.

The verdict in this case reads as follows:

"We, the jury, find the defendant 'GUILTY' and assess her punishment at $500.00."

Appellant insists that, inasmuch as the information charged in the same count two separate and distinct elements of aggravated assault, the verdict, to be sufficient should have found upon which element guilt was predicated. In support of this contention, it is insisted that an assault with "premeditated design, and by the use of means calculated to inflict great bodily injury" is materially different from and embodying elements not contained in a charge of aggravated assault by the infliction of "serious bodily injury."

Where the evidence, as here, shows but one transaction, a general verdict will be applied to the count, finding support in the proof. 12 Tex. Jur., Sec. 341, p. 695.

The proof abundantly authorized the jury's conclusion that a serious bodily injury was inflicted. The general verdict may be applied to that count.

Believing that this case was correctly decided originally, the motion for rehearing is overruled.

Opinion approved by the Court.