Austin v. State

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

At the time notice of appeal was given herein the court made an order granting thirty days from adjournment within which to file bills of exception. The court adjourned April 21, 1928. Within the thirty day period thus granted, the court entered a further order extending the time for filing bills of exception to thirty days more. This second period of extension ended June 21, 1928. On June 23rd thereafter the court attempted to grant additional time for filing such bills. The trial term of the court below had adjourned. The court was without power to make the order of June 23rd, same being attempted to be made after the end of the prior extension order. Mireles v. State,98 Tex. Crim. 396. This case has been followed in many others since. The bills of exception appear to have been filed July 9, 1928, and cannot be considered because filed too late.

The exceptions to the court's charge appearing in the record do not seem to have been presented to the court for approval, nor are same verified in any way as having been presented within the time required by statute. Gibson v. State,88 Tex. Crim. 281. In order to entitle such exceptions to consideration, same must be verified by the approval of the trial court, and this fact must appear either by notations thereon or by the recitals in some separate bill of exceptions.

We have carefully considered the statement of facts herein, and it appears therefrom that the appellant's daughter, a girl of fifteen years of age, testified that on the occasion referred to appellant had carnal knowledge of her. She is corroborated by her brother who was within view, and testified to the occurrence. Being of opinion that the testimony supports the judgment, and that appellant does not bring himself in a position to criticise anything done during the trial, and that no error appears, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.