Burton v. State ( 1932 )

The only questions presented for review are the sufficiency of the evidence to support the verdict and the alleged misconduct of the jury.

The evidence is conflicting, but that of the state, if believed by the jury, is quite sufficient to support the conviction. With the facts before it, the verdict of the jury in favor of the state is binding on this court.

Touching the alleged misconduct, the facts adduced by the appellant on the motion for new trial, if true, are not deemed such as to justify a reversal. However, they are controverted, and on the conflict of evidence, the decision of the trial judge is conclusive on appeal. See Day v. State,120 Tex. Crim. 17, 48 S.W.2d 266, and many precedents therein collated.

The remark in the original opinion that there were no bills of exception was simply a statement of fact explanatory of the absence of any discussion of the bills of exception. In his motion for rehearing, appellant adverts to certain Acts of the 42d Legislature, declaring that bills of exception are unnecessary (chapter 135). The pertinency of the reference, however, is not pereceived for the reason that the merits of the case were passed on in the original opinion. We take occasion to call attention to the fact that the act of the Legislature to which counsel for the appellant refers was repealed by chapter 34, section 3a, page 75, Acts of the Forty-second Legislature, First Called Session (Vernon's Ann. Civ. St., art. 2239 note); the repealed act having taken effect some time before the trial upon the present appeal.

Perceiving no error in the record, the motion for rehearing is overruled.

Overruled.