Alaniz v. State

BEAUCHAMP, Judge.

The conviction is for assault to murder with malice. Punishment was assessed at fifteen years in the penitentiary.

The argument presented in this case was on the theory that appellant was convicted of murder with malice and that there was insufficient evidence to show that he was the party who struck the fatal blow. We observe, however, that the conviction is for assault to murder. Appellant’s brother was involved in the difficulty and was charged, under a separate indictment, with the same offense. Appellant sought to have the brother’s testimony admitted in evidence saying that he was the one who inflicted the death wound. The complaint in this respect as well as others are embraced in four bills of exception which are found in the record. We note, however, that the motion for new trial was overruled November 27,1948. Notice of appeal was that day given. No order is found extending the time beyond thirty days in which to file bills of exception until long after the expiration of the thirty day period. On January 23rd the court attempted to make such order extending the time. The trial court lost jurisdiction to enter that order at the expiration of thirty days. This question has been so frequently passed upon by this court that it would hardly seem necessary to cite authorities now. The matter is regulated by statute and we have no power to change it, or to make an exception thereto.

That appellant was engaged in the difficulty resulting in the death of a party is not disputed; that he was a principal to the murder might well have been supported, had the jury so determined. We see no ground for contention that the evidence does not support the jury’s finding that he was guilty of assault to murder with malice.

We are unable to consider the bills of exception, and discussion of the questions raised by them would be improper.

The judgment of the trial court is affirmed.