Nunez v. State , 70 Tex. Crim. 481 ( 1913 )

HARPER, Judge.

Appellant was prosecuted and convicted of the offense of kidnapping, and his punishment assessed at four years confinement in the penitentiary.

There are six bills of exception in the record, but none of them show that they were ever presented to or approved by the judge trying the case. A bill of exceptions prepared and filed by appellant’s counsel without the knowledge, consent or approval of the trial judge can not be considered by this court. A bill must be approved by the judge, and his approval verified by his signature. Consequently, the questions sought to be raised by these bills can not be considered, and we will not discuss them.

The fact that defendant was arrested on a capias in another case pending against him during the time he was on trial in this case would present no error.

The court instructed the jury as to the boundary line between Mexico and the United States in the following language:

“You are instructed that under the Treaty of Guadalupe Hidalgo, proclaimed July 4, 1848, between the United States of America and the Republic of Mexico, a portion of article 5 provides as follows:

“ ‘The boundary line between the two Republics shall commence in the Gulf of Mexico three leagues from land opposite the mouth of the Rio Grande, otherwise called Rio Bravo Del Norte, or opposite the mouth of its deepest branch, if it should have more than one branch emptying directly into the sea; from thence up the middle of the river, following the deepest channel where it has more than one, to the point where it strikes the southern boundary of New Mexico.’

“You are further instructed that under the Gadsden Treaty, proclaimed June 30, 1854, the boundary between the United States and Mexico was not changed in so far as the boundary between Mexico and that part of the United States, embraced in Texas, is concerned.”

Appellant claims that these treaties have been amended by the treaty of 1884, and requested the court to charge the jury as follows:

“You are hereby instructed that the treaty between the United States of America and the Republic of Mexico makes the boundary line between the two countries the normal channel of the Rio Grande river, notwithstanding any alteration between the banks or in the course of the river, provided that such alteration be effected by natural causes, through the slow and gradual erosion and deposit of alluvium and not by the abandonment of an existing river bed and the opening of a new one.

“If, therefore, you believe from the evidence that the Rio Grande river ran in a channel between Tornill • and the present channel of the river and northerly of the place where Lawrence F. Converse was arrested, should you find that he was arrested, and that said river changed its course suddenly into a new channel, or the present channel, and did not change by gradual erosion and deposit of alluvium, then you will find that said Lawrence F. Converse was not arrested or restrained of his liberty within -the County of El Paso and State of Texas, and you will, therefore, acquit the defendant.”

As there is no proof in the record that the bed of the river was suddenly changed, there was no error in refusing the special charge, nor in the court giving the charge complained of in the motion for new trial and herein copied.

The other matters complained of relate to the admissibility and rejection of testimony, and as the bills of exception are not verified by the trial judge’s signature, we can not consider them. But if we should consider them, we think the evidence would raise the issue of a conspiracy, and under such circumstances the statements of all parties connected with and during the continuance of the conspiracy would be admissible in evidence.

The judgment is affirmed.

Affirmed.