Garza v. State

The offense, conspiracy to commit the crime of murder; appellants' punishment fixed at ten years each in the penitentiary.

The record is before us without a statement of facts. Appellants filed a motion in arrest of judgment, and among the grounds set up in arrest of said judgment and by bill of exception No. 3 was that the indictment filed in this case and on which defendants were tried states no offense against the laws of this state. We perceive no merit in the motion. The indictment charged, omitting the formal parts, that "Francisco Garza, Jesus Gomez, and Dolores Maroquin on or about the 17th day of December, A.D. 1931, and anterior to the presentment of this indictment, in the County of Cameron, State of Texas, did then and there unlawfully conspire, combine, confederate and enter into a positive agreement with each other, voluntarily and with malice aforethought, to kill and murder Paula Cavazos Garza." The allegations in the indictment are substantially in conformity with the statutes defining the offense of conspiracy to commit a felony. See Wilson's Crim. Forms, sec. 703; also Branch's Ann. P. C., secs. 2677 and 2678.

Appellants in their motion in arrest of judgment and by bills of exceptions Nos. 1 and 2 contend that article 1626 of the Penal Code is unconstitutional under sections 3 and 13, article 1 of the Constitution of this state. We have examined said motion and bills and find no merit in said contention.

Bill of exception No. 4 complains of the refusal of the trial court to instruct the jury to find the appellants not guilty because of the insufficiency of the evidence. We cannot pass upon the sufficiency of the evidence in the absence of a statement of facts.

Bills of exception Nos. 5, 6, 7, 8 and 9 complain of certain sections of the court's charge to the jury. There were no special instructions requested, and the objections to said charge now being urged by said bills were not raised at the time of the trial by written objection to the court's charge, as required by article 658, C. C. P., 1925, but were for the first time complained of on the motion for new trial. This was too late. See Lawson v. State, 114 Tex.Crim. Rep.,24 S.W.2d 412; Marshburn v. State, 115 Tex.Crim. Rep.,28 S.W.2d 135; Faulkner v. State, 104 Tex.Crim. Rep.,283 S.W. 824; Redford v. State, 98 Tex.Crim. Rep.,262 S.W. 766.

Bill of exception No. 10 complains of the state being allowed to ask the defendant Dolores Maroquin certain questions on her cross-examination after she had testified on direct examination in her own behalf. Bill of exception No. 11 complains of certain questions asked the defendant Jesus Gomez by the state after the defendant Jesus Gomez testified on direct examination in his own behalf. Bill of exception No. 12 complains of the state being allowed to ask the witness Paula Garza certain questions on the grounds that said questions were leading.

All of the last three bills of exception are in question and answer form and contain the remarks of the court and attorneys and are not accompanied by certificates of the trial judge showing the necessity therefor in order to elucidate the facts of questions involved, and therefore cannot be considered. Salinas v. State, 113 Tex.Crim. Rep., 18 S.W.2d 663; Kelly v. State, 112 Tex.Crim. Rep., 17 S.W.2d 460; Lindley v. State, 112 Tex.Crim. Rep., 17 S.W.2d 47.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.