Davis v. State , 69 Tex. Crim. 86 ( 1913 )

From a conviction of an assault with intent to rape, with a penalty fixed at ten years in the penitentiary, the appellant appeals.

The evidence is clearly sufficient to justify the verdict. Appellant's defense was alibi, which was correctly submitted by the court and found against him.

By one bill it is shown that appellant made an oral motion for a continuance. It is set out in the record. It is on two grounds: First, because his attorney was temporarrily out of the State, or city, and made no arrangement for the case, believing that he would return in time to try it. Neither the bill nor the motion for continuance show any such ground as would justify the court to reverse this case on that account. Usher v. State,47 Tex. Crim. 93.

The other ground of the motion for continuance is on account of the absence of three witnesses. Neither the bill, nor the motion in any way show what was expected to be proved by these witnesses, their residences or that any diligence whatever had been used to get them. The court did not err in overruling the motion for continuance.

The record does not show that any exception whatever was taken to the introduction of any testimony during the trial. In the motion for new trial several complaints are made to the introduction of testimony. The appellant merely has bills of exceptions to the overruling of his motion for new trial on these several grounds. This does not raise the question in such a way as that we can pass upon it. Objections to testimony must be made at the time it is offered and bills then taken. If not, it is too late to complain, for the first time, in the motion for new trial.

In the motion for new trial appellant complains that the court erred by failing to limit the testimony of Dee Taylor as affecting the credibility of the witness, Sam Davis. No necessity is shown for this, either in the motion or elsewhere.

In like manner appellant complains that the court submitted to the jury to find whether one of the State's witnesses, Dan Taylor, was an accomplice. The charge is not excepted to other than that no charge on the subject was called for. Even if the testimony did not require the submission of this question to the jury, it is not shown and we can not see how such a charge was prejudicial to appellant.

We have carefully considered all of appellant's complaints and in the way they are raised, none of them present any reversible error. The judgment is, therefore, affirmed.

Affirmed.

[Rehearing denied March 12, 1913. — Reporter.]