Whitten v. State

Appellant was convicted of murder in the second degree, and his punishment fixed at confinement in the penitentiary for a term of thirty years. This is a companion case to that of Harrison v. State, 11 Texas Ct. Rep., 617.

The first ground of the motion for new trial complains "that the court erred in not hearing the testimony on defendant's special sworn plea, for the reason set forth in defendant's bill of exceptions number 1, which is referred to and made a part of this motion." We find the sworn plea in the record, and also a plea to dismiss the prosecution, setting up certain facts; and we also find an order on said motion to dismiss, refusing it. Appellant does not show an agreement with county attorney. Cameron v. State, 32 Tex.Crim. Rep.; Tullis v. State,52 S.W. 83; 53 Neb., 305.

Appellant also insists that the court erred in his charge to the jury as a whole, because said charge in every paragraph, and taking every paragraph together, is on the weight of the evidence; and suggests to the jury, without testimony to bear out said charge, that defendant Whitten, did aid, abet, assist and agree to the killing of deceased, as shown by defendant's bill of exceptions number 2. We have carefully examined the charge; and in our opinion it presents the law aptly to every phase of the case. Appellant's motion then complains of practically every paragraph of the charge, upon the same ground just stated. We do not think any of the objections are correct. The evidence amply warrants the verdict of the jury; and the judgment is affirmed.

Affirmed.