Ekern v. State

ON MOTION FOR REHEARING.

HAWKINS, Presiding Judge.

Appellant’s motion for rehearing was filed in this court on January 18, 1947, which was within fifteen days after the opinion of affirmance was handed down on January 8.

The first complaint urged is that this court erred in holding the indictment sufficient to charge the offense of assault with intent to murder because the word “assault” does not appear in the indictment. Appellant seems to think the omission renders the indictment bad as to “form.” It occurs to us that if the word was necessary its omission was a matter of substance. The indictment either charged assault with intent to murder or it did not.

“The use of any unlawful violence upon the person of another with intent to injure him * * * is an assault and battery.” Art. 1138 P. C. If one unlawfully and with malice aforethought shoots another with a pistol the violence is present, and if it is done with intent to murder the intent to injure is manifest. Although believing the present indictment sufficient we again suggest that it is always better for the pleader to follow approved forms, if for no other reason than to avoid questions from arising.

The second paragraph of the motion seeks a rehearing “Because the court erred in holding that reversal error was not rejected by the matters and things set out in defendant’s bill of exceptions No. 2.” Then follows the exact averment as to bills of exception numbers three to eighteen, inclusive. We assume that appellant meant to say that “reversible error was not reflected,” However, nothing further appears in the motion to point out wherein appellant thinks error was committed by this court. It is stated in the motion that a brief was being submitted which was adopted as a part of the motion. A brief and argument on two propositions was filed, but not until February 26, which was 48 days after the original opinion was released. To permit a brief or argument to be thus filed to preserve a point not properly raised in the motion which had been filed within the fifteen days would amount to a non-observance of the requirement that motions for rehearing must be filed within 15 days after the original opinion is released. See Jordan v. State, 64 Tex. Cr. R. 187, 141 S. W. 786; Cooper v. State, 98 Tex. Cr. R. 446, 265 S. W. 894; Estep v. State, 107 Tex. Cr. R. 538, 298 S. W. 283; Grant v. State, 105 Tex. Cr. R. 193, 287 S. W. 254; Duke v. State, 124 Tex. Cr. R. 454, 63 S. W. (2d) 552; Singleton v. State, 20 S. W. (2d) 782; Thompson v. State, 134 Tex. Cr. R. 405.

However, we may say that before observing the delayed filing of the brief and argument the questions urged therein had been re-examined, and it is thought they were properly disposed of in the original opinion.

In the brief and argument, not filed until the 26th day of February, appellant calls our attention to a matter to which we now advert. In his charge to the jury the trial judge gave various forms of verdicts, leaving blanks to be filled in reflecting the jury’s finding. In the form for guilty of assault to murder with malice it appears in the transcript as though the judge had instructed the jury to assess defendant’s punishment at three years in the penitentiary. The court had told the jury to write their verdict on a separate piece of paper. Such a verdict so appears in the record. It is now made to appear that in the blank left by the court in his charge there was written in ink the three year penalty, and that there was nothing in blank when the charge was given to the jury. It is evident that before noticing the court’s instruction to write their verdict on a separate sheet of paper the jury started to show their verdict by filling in the blank in the appropriate form reflecting their verdict. Any other conclusion would reflect on the intelligence of the court, as well as upon the intelligence of counsel for failure to object to any such instruction as he now suggests is reflected by the record.

The motion for rehearing is overruled.