Bargas v. State , 86 Tex. Crim. 231 ( 1919 )

DAVIDSON, Presiding Judge.

This conviction was for theft of cattle, the punishment being assessed at two years in the penitentiary.

There are no bills of exception contained in the record. Appellant filed in this court on the 5th of the current month what he terms bills of exception. This purports to be a transcript of what occurred on the trial as shown by the stenographer’s notes, and is so certified by the stenographer. The court adjourned on the 2nd of May last. These exceptions are not approved by the judge, nor were they presented to him. This document cannot be considered. In order to constitute a bill of exceptions it must first be approved by the court certifying its correctness, and, second, it must be filed either in term time or within such time as may be authorized by law.

Appellant contends that inasmuch as it developed upon the trial that his name was Vargas instead of Bargas as alleged in the indictment, therefore there was a variance. In this contention there is no merit. Appellant when arraigned plead to the indictment as charged. Had he desired to have the indictment corrected or plead under his proper name, he should have so suggested to the court and the indictment would then have been changed to meet the request so as to show his real name. The law makes a distinction between the name of the defendant alleged in the indictment and the supposed ^variance by the proof and that of the alleged owner. The defendant may plead by any name if he sees proper, but if he pleads to the name as alleged in the indictment a reversal will not occur, nor would any error be shown. The decisions are quite numerous to this effect.

Appellant filed an application for a continuance. This matter can be disposed of with the statement that a bill of exceptions was not reserved to its refusal, and, therefore, it cannot be considered.

The motion for new trial contains several grounds which can not be considered in the absence of exceptions. While the evidence is circumstantial, we are of opinion it is sufficient to sustain the conviction. A statement of this testimony would be of no service or value, and, therefore, it is not included in the opinion.

Affirmed.