Ray v. State , 116 Tex. Crim. 575 ( 1930 )

Offense, robbery with firearms; penalty, fifteen years in the penitentiary.

The State's testimony shows that appellant and another went into the place of business of the First State Bank of Ovalo and there at the point of a pistol took from the vaults of said bank $3880.00 in money. The evidence sufficiently identifies appellant as one of the men who robbed the bank.

Appellant's confession was introduced in evidence and its alleged inadmissibility presents the only legal question found in the record. The body of this confession was introduced without reading to the jury that part of same containing the statutory warning given appellant. The substance of the objection is that such confession was inadmissible because it did not recite a legal warning. Appellant's bill presenting this matter is qualified by the trial judge with this language: "The original statement contained what the court construed as a proper warning, under the law in such cases. The State offered the Statement but the warning contained what the court construed as a proper warning, under the law in such cases. The State offered the Statement but the warning contained on the same was not read in evidence to the jury." No exception or objection was made to this qualification nor was the written warning thus shown to appear as part of the written statement brought up, so that this Court might determine its legal sufficiency. The rule, supported by a great number of authorities, is thus stated in 4 Tex. Jur., Sec. 194:

If appellant accepts and files a bill with a qualification he is bound by the qualification, which will not only be accepted by the appellate court as correct, but will also control in so far as it is in conflict with the bill as prepared by the appellant's counsel. Moreover, the appellate court will presume that qualifications in a duly certified bill were made with the consent of the accused or his counsel unless the contrary appears over the certificate of the trial judge, and it will accept as correct qualifications to which no objections are filed or no exception taken, in the court below, or to which objection or exception is not verified by the trial court, and will not consult the statement of facts or other parts of the record to verify the statements therein."

Since we must presume that the Court's qualification was made with the consent of the accused, we are of the opinion that this bill of exception shows no error. The legal sufficiency of the warning in question was a matter for the determination of the Court and under the issues of this case it was not necessary to read same to the jury. If the appellant desired to contest the trial court's construction of same, its language should have been embodied in and brought up in a proper bill of exception.

Finding no error in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.