Giles v. State (150 S.W. 907, 1912)

DAVIDSON, P. J.

Appellant was convicted of assault to murder; his punishment being assessed at two years’ confinement in the penitentiary.

He assigns as error the overruling of his application for a continuance. The record does not- contain a bill of exceptions, but there is a bill of exceptions accompanying the record, but independent of it, which was filed 87 days after the adjournment of court. Court adjourned on thé 15th day of March, 1912. There was an order entered at that time granting 30 days after adjournment of court in which to prepare and file statement of facts and bills of exceptions. He would, perhaps, have had 30 days anyway, without entering this order; but the record does not contain any order extending the time, and the bill having been filed on June 10th, after the previous adjournment of court, it cannot be considered. Therefore the matter set up in the bill, which relates to the overruling of the application for continuance, cannot be considered.

It is contended the verdict is not supported by the facts. The questions involved within this contention cannot be sustained. The state’s evidence made a case. The evidence for the defendant flatly contradicts it. This was peculiarly a question for the jury, and they decided against appellant.

The court, after charging the law of self-defense, gave this charge: “I further charge you that if yon believe from the evidence that the defendant, or Quitman Buford, or both, did the shooting, if any, then you will find the defendant not guilty.” It is contended that this is reversible error. The state’s theory was that the defendant was shooting at Fred Buford. Under this charge, if appellant fired, or did the shooting, then he would not be guilty. How the jury convicted under this charge is difficult to understand. The court, all through the charge, had instructed, if appellant did the shooting with malice aforethought, he would bet guilty of assault with intent to murder, and then submitted the law of self-defense and aggravated assault. Under the recent decisions of this court construing article 743 of the Code of Criminal Procedure, and in view of the entire charge and the evidence, we are of opinion this does not present such error as ought to be held injurious to the defendant. There was no evidence in the record to form predicate for this charge, but it was not injurious. That the jury did not acquit him, in the face of this charge, he contends to be error. The facts were that, if he shot at Fred Buford, he did it for the purpose of killing him, as he fired at him five times. All the time the assaulted party was fleeing. His side of the case was that he did not fire at all, had nothing to do with it, and introduced evidence to that effect. This charge was evl-dently a mistake on the part of the court. While the writer has not agreed with the decisions above referred to, yet, in view of the fact that they constitute the law of the state, this does not present such error as would cause a reversal of the judgment.

The judgment is affirmed.