Chafino v. State (154 S.W. 546, 1913)

PREND-ERGAST, J.

Tbe appellant appeals from a conviction of an assault with intent to rob, with a penalty of five years in tbe penitentiary.

Tbe evidence for tbe state was. amply atad clearly sufficient to sustain tbe conviction. Appellant’s defense was alibi, wMch was correctly submitted by tbe court and found against bim. While appellant denied tbe assault to rob, and bad evidence by bis mother, brother, and himself sufficient to have established an alibi, if believed by tbe jury, tbe testimony of the state positively and without question, if believed, identified tbe appellant as one of tbe parties who committed the assault with intent to rob, and tbe circumstances detailed, if believed by tbe jury, clearly established the state’s ease.

Appellant has a very brief and incomplete bill of exceptions, showing that be objected to tbe prosecuting witness testifying that be bad bis money in bis shoe on tbe night of tbe alleged assault, and that it was his custom to carry bis money in such manner. Tbe bill shows no error in tbe admission of this testimony. This witness testified that tbe assault was committed by two persons — one having a pistol, who stopped bim, and made bim bold up his bands, while tbe other went through all bis pockets, and ran his bands up and down bis body and legs, in search of money, and bis explanation of why they did not get bis money was that be bad it in bis shoe, and was accustomed to carry it there.

Appellant bas another bill in which be claims be objected to this statement by tbe prosecuting attorney in bis closing argument to tbe jury: “Gentlemen, this defendant’s record is against bim.” Tbe bill is entirely too meager, and does not show error. No written charge is shown in tbe record, requesting tbe court to charge tbe jury not to consider this remark, even if it was objectionable. Clayton v. State, 149 S. W. 119.

Nothing else is presented requiring any further discussion.

Tbe judgment is affirmed.