Blackwell v. State

Bills of exception one and two, having been filed more than ten days after the termination of the trial, can not be considered. Rev. Stats., art. 1363; Railway v. Holliday,65 Tex. 512.

The remaining bill was reserved to the refusal of the court to incorporate bills of exception in the statement of facts. Exceptions to the admission of testimony may be so incorporated, but not those reserved to the exclusion of evidence. Cooper v. The State, 7 Texas Crim. App., 194; Green. v. The State, 12 Texas Crim. App., 51; McWhorter v. The State, 13 Texas Crim. App., 523; Branch v. The State, 15 Texas Crim. App., 96; Willson's Crim. Proc., sec. 2516.

While bills reserved to the admission of evidence may be so preserved, the refusal of the court to do so would not be cause for reversal. The defendant may prepare his bills otherwise, and if refused by the court they can be proved up by the bystanders under the statute. The defendant is not left without remedy in regard to bills of exceptions, Rev. Stats., arts. 1358-1367. Every bill of exceptions reserved by appellant was approved by the court, made part of the record, and all filed the same day with the statement of facts, except bill number 3, reserved to the court's failure to incorporate exceptions in the statement of facts.

We deem it unnecessary to discuss the appellant's criticism of the charge of the court in relation to assault with intent to murder, inasmuch as appellant was acquitted of that degree of the offense charged.

The court did not err in submitting the issue of aggravated assault, nor did the jury err in convicting appellant. The assault was made by the use of a deadly weapon. While the circumstances were not sufficient to justify a conviction of the assault to murder, they amply support the verdict finding appellant guilty of the aggravated assault. Nor did the court err in instructing the jury in regard to the use of a dangerous weapon in an angry and threatening manner with intent to alarm another, under circumstances calculated to effect that object. Penal Code, art. 489, subdiv. 3; McCullough v. The State, 24 Texas Crim. App., 128.

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

Affirmed.

Judges all present and concurring.