Craven v. State , 93 Tex. Crim. 328 ( 1922 )

Appellant was convicted in the District Court of Shelby County of manslaughter, and his punishment fixed at five years in the penitentiary.

The indictment was for the murder of Bennie or Benie Young. From the stenographic report of the testimony it appears that the witnesses spoke of deceased as Benny Young. One witness testified that deceased told him his name was Bennett Young. The name of the injured party as alleged in the indictment and that attributed to him by the witnesses seems idem sonans.

Our inference from the record in its present condition would be that special charges Nos. 2 and 3 were given by the trial court. Special charge No. 4 appears to have been refused, but there is nothing on the bill as same appears in the record to indicate that such refusal was objectionable to the appellant, or that he reserved any exception to such action of the court below; nor does there appear any bill of exceptions complaining of the refusal of such charge. This court holds that where there is nothing in the record neither on or a part of the special charge, and certified to by the court below, or in a separate bill of exceptions setting forth that an exception was taken to the refusal of the special charge, this court will have nothing before it for consideration in regard thereto. Nichols v. State, 91 Tex.Crim. Rep., 238 S.W. Rep., 232; Fry v. State,86 Tex. Crim. 72, 215 S.W. Rep., 560; Reese v. State, opinion November 29, 1922.

Complaint is made of the manner in which the issue of insanity was presented. We have examined the statement of facts and would be in doubt as to there being testimony sufficient to raise the issue, but the trial court seemed to think it necessary and, therefore, gave special charge No. 2 prepared by the appellant's counsel, and which seems to us a sufficient presentation of the law applicable to this issue.

Finding nothing in the record to call for a reversal, the judgment will be affirmed.

Affirmed.

ON REHEARING. January 31, 1923.