Bell v. State (169 S.W. 1150, 1914)

PRENDERGAST, P. J.

Appellant was convicted for an assault with intent to murder, and his punishment fixed at 13 years in the penitentiary.

There appears in the record what purport to be three very meager and insufficient bills of exceptions as to the introduction of evidence. The Assistant Attorney General contends that this court cannot consider said bills, because they were filed 55 days after the adjournment of the court, when the court allowed no such time for filing the same. His contention > is correct. The statute allows 30 days only after adjournment to file bills of exceptions without the court making any order to that effect. It authorizes the court to grant a longer time for good cause shown. No longer time was allowed. Hence neither of the bills can be considered. C. C. P.; art. 845. It is needless to cite the many eases of this court’s uniformly complying with the statute. Besides, each of the bills is so wholly insufficient that neither of them could be considered. Best v. State, 164 S. W. 997. Still further, if they had been filed in time and been sufficient to raise the question, the testimony objected to was admissible.

By the act of our Legislature approved April 5, 1913, amending certain articles of our Criminal Procedure, it requires a defendant to make objections to the court’s charge, or an omission therein, before the charge is read to the jury and prohibits this court from reversing a case because of defects in the charge when no such objections were made. Since the passage of that act, this court has uniformly, in many decisions, construed and followed this statute. It is unnecessary to cite them. No exception whatever was made in any way to the charge of the court. However,' in the motion for new trial only, appellant complains of a claimed omission in the charge, in that the court did not submit to the jury whether or not t)hey could suspend the sentence. This does not raise the question in such way that this court can consider it under the statute and decisions.

Appellant also complains in his motion for new trial that the evidence is insufficient to support the verdict. He also claims that the penalty is excessive. We have carefully read the evidence. The state’s side of it, by a preponderance, makes an aggravated case. Appellant’s victim was his wife. We could not disturb the verdict of the jury on appellant’s contention. Neither could we disturb it because of the claim of its being excessive. It has always been held by this court that, when the punishment inflicted by the jury is within that prescribed by the Legislature, the jury, and not this court, is to determine his punishment, and this court is bound by that fixed by the jury. The punishment for this offense is confinement in the penitentiary for not less than 2, nor more than 15, years. The punishment assessed in this case was 13 years.

The sentence is for 13 years, instead of indeterminate. It is ordered reformed and affirmed.