Miller v. State , 112 Tex. Crim. 194 ( 1928 )

Conviction for murder; punishment, five years in the penitentiary.

It is not deemed necessary to set out in detail the testimony in this case. That for the State sufficiently shows that on the occasion in question an attack was made upon the father of deceased by appellant and other parties with pistols, etc. Deceased was in company with his father at the time and in the conflict that followed said attack deceased and his father were both killed, deceased being shot in the back and in the head at such close range as that his clothing was set on fire and his head powder-burned. The facts appear sufficient to justify and support the verdict and judgment.

There are some nineteen bills of exception, each of which has been carefully considered. Bills Nos. 1, 2, 3, 7, 8 1/2, 9, 10, 11, 12, 13 and 14 set out proceedings such as that certain testimony was introduced, — or certain charges refused, — and for reasons stated the defendant excepted, but each of said bills is fare of any showing of facts the recital of which in the bill itself this court might know that such objections were well taken. That such bills are insufficient is and has been uniformly held. Buchanan v. State, 24 Texas Crim. App. 195; Rufony v. State, 98 Tex.Crim. Rep.; Williams v. State, 100 Tex.Crim. Rep..

Bill No. 4 is not approved by the trial court, but if so, it in common with bills Nos. 5, 6 and 8, is subject to the criticism that said bills are all in question and answer form without any certificate of the trial court that it was necessary to so have them in order that this court might fully appraise the questions presented. Such bills cannot be considered. Page v. State, 94 Tex.Crim. Rep.; Smith v. State, 95 Tex.Crim. Rep.; Taylor v. State, 98 Tex. Crim. 185.

Bill No. 15 relates to exceptions to paragraphs ten and fourteen of the court's charge. We are not in accord with the proposition that paragraph ten of said charge is on the weight of the evidence, and see no force in the objection to paragraph fourteen under the facts of this case.

Bill No. 16 complains of a special charge given at the request of the State. In same the jury were told that though they might believe that appellant killed the father of deceased, or that he was present and acting with others who shot and killed said father, yet they could not convict appellant for the killing of deceased unless they believed beyond a reasonable doubt that appellant shot and killed deceased, acting either alone or with other persons. This seems to present a correct legal proposition and applicable to the facts of this case. The substance of said special charge asked by the State seems to have been asked in special charges asked by appellant, the refusal of which appears in bills of exception Nos. 18 and 19, but the refusal of the latter appears not to be of any weight in view of the giving of the special charge asked by the State.

Being unable to find in this record any error for which reversal should be ordered, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.