Simmons v. State , 73 Tex. Crim. 288 ( 1914 )

Appellant was prosecuted and convicted of assault to murder, and his punishment assessed at three years confinement in the State penitentiary.

No exceptions were reserved to the introduction or rejection of any testimony as shown by the record. The only bill of exceptions in the record is one reserved to the action of the court in overruling his motion for a new trial. This adds no verity to the motion for new trial, and only such questions can be considered which were authorized to be presented for the first time in the motion for a new trial.

It appears from the record that a singing convention and barbecue was being held on the first of last June, when two boys, D. Jones and Doody Smith got into a fight. From this occurrence a difference arose between appellant and Ira Coleman, a deputy sheriff. Appellant approached the deputy and laid his hands on his shoulder, when the deputy shoved him off. Appellant started toward the deputy again, when the deputy kicked him, as did also Joe Thomas. Appellant then remarked, so some of the witnesses say, "he would go back in the house, get his gun and kill the son-of-a-b___h." He did go in the house, get his pistol, come out, threw it down on Coleman and snapped it, but it failed to fire. He then retreated back in the house.

Appellant contends that the court erred in letting the district attorney "wave the pistol before the jury during his argument." That the district attorney did do this is not verified by any bill of exceptions. It is complained of for the first time in the motion for a new trial, and comes too late. To enable us to review the question appellant should have objected at the time it occurred, if it did occur, and presented a bill of exceptions. Not having done so, we can not review this ground in the motion for new trial.

This case was tried on the 24th day of last September, three months after the law passed by the last Legislature in regard to complaints of the charge of the court went into effect. By that Act it was provided that before reading the charge to the jury, the court is required to submit the charge to counsel, and counsel then is required to submit any objections he has to the charge in writing. Appellant made no objections to the charge before it was read to the jury, and made no complaint of the charge, as shown by this record, until after verdict. This law was passed requiring counsel to make objections before the charge is read that the court may correct any errors, if errors there be, in the charge. Complaints can no longer be made for the first time in the motion for a new trial. We discussed this matter at length and cited the authorities recently in the case of James v. State, 72 Tex.Crim. Rep., which is here referred to.

The first indeterminate sentence law was declared invalid, and the court correctly required the jury to assess the punishment.

While the court's charge in presenting the issue of aggravated assault may be subject to some criticism in that it did not as fully define "adequate cause" as applicable to the testimony as he should have done, yet as hereinbefore stated, the charge in and of itself as far as it went is not erroneous — it may not be as full as appellant would have preferred, yet appellant asked no special charge, made no objection to the charge as given until after verdict, and it is just such matters as these that the Legislature has declared can not be presented for the first time in the motion for a new trial.

The evidence we think is ample to support the verdict, for if appellant's pistol had not snapped, it is apparent that he would have killed the deputy sheriff, and after he had snapped his pistol, if he had not been surrounded by his wife and children, the deputy would most likely have shot him. It is such scenes as this, going and arming one's self and returning to the scene to engage in a fatal encounter, that the law intends to prevent and punish.

The judgment is affirmed.

Affirmed.

ON REHEARING. March 18, 1914.