Arocha v. State, 14295.

• Decision Date: 06 May 1931
• Docket Number: No. 14295.,14295.
• Parties: AROCHA v. STATE.
• Court: Texas Court of Criminal Appeals

39 S.W.2d 1097

AROCHA v. STATE.

No. 14295.

Court of Criminal Appeals of Texas.

May 6, 1931.

Appeal Reinstated May 20, 1931.

Rehearing Denied June 24, 1931.

Commissioners' Decision.

Appeal from District Court, Wilson County; W. O. Murray, Judge.

Antonio Arocha was convicted of murder, and he appeals.

Affirmed.

See, also, 27 S.W.(2d) 197.

S. B. Carr, of Floresville, and Heilbron, Kilday & Howard, of San Antonio, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for 20 years.

The state's attorney before this court moves to dismiss the appeal because no sufficient notice of appeal appears in the record. We find in the record the copy of a docket entry indicating that appellant gave notice of appeal. This is not sufficient. Thackerson v. State (Tex. Cr. App.) 26 S.W.(2d) 241; Bryson v. State (Tex. Cr. App.) 20 S.W.(2d) 1047. The sentence concludes with the statement that it was imposed subject to the action of the Court of Criminal Appeals of the state of Texas. This is not sufficient to show that notice of appeal was given in compliance with article 827, C. C. P., which provides that an appeal is taken by giving notice thereof in open court at the term of court at which conviction is had, and having same entered of record.

The motion to dismiss must be granted. Without notice of appeal, this court has no jurisdiction. Gatlin v. State (Tex. Cr. App.) 23 S.W.(2d) 382.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. On Motion to Reinstate Appeal.

LATTIMORE, J.

It being made known to us by a supplemental transcript that the original order of the trial court contained a notice of appeal, and that same has now been properly entered on the minutes of said court, the order of dismissal is set aside, the appeal is reinstated, and the cause now considered on its merits.

Upon the trial, the court submitted murder with malice aforethought and without malice, also self-defense based on real or apparent danger; and also gave special charges requested by appellant instructing the jury fully upon appellant's right to kill to prevent theft at night, and telling the jury that, if they believed deceased or some other person was stealing, or preparing to steal, turkeys or other property at night under appellant's control, and appellant shot while such party was within gunshot of the place where he believed said property was being taken, or about to be taken, or if they had a reasonable doubt on that proposition, the jury should acquit. They were also told in a special charge which was given that, if they found that appellant believed he was firing at some object or an animal other than a human being, and thereby killed deceased, and that such belief did not arise from a want of proper care on appellant's part, and that the shooting was under such conditions, or if they had a reasonable doubt thereof, they should acquit. Another special charge, given at the request of appellant, applied the law of negligent homicide aptly to the facts as testified to by defense witnesses, the jury being told that, if appellant shot while in the performance of a lawful act, to wit, the act of protecting property, or if he fired at some animal or object other than a human being, and that without apparent intention to kill, and by negligence killed deceased, he would not under such facts be guilty of more than negligent homicide.

The court's charge was excepted to for its failure to submit the law of aggravated assault. This is discussed at length in appellant's brief and various cases are cited. In our opinion, appellant does not properly comprehend said authorities. The Gomez Case (Tex. Cr. App.) 34 S.W.(2d) 607, on its facts shows that there was a fight between two seventeen year old boys in which one of them, the accused, cut the other with an ordinary pocketknife. So also in Bookman v. State, 112 Tex. Cr. R. 233, 16 S.W.(2d) 123, 125, it appears that appellant in killing his wife used only his hands and feet and a part of an axe handle, and in this opinion we said: "There is no question but that the violence was committed by the use of means not in their nature ordinarily calculated to produce death." As said by us in Cade v. State, 96 Tex. Cr. R. 527, 258 S. W. 484, 486: "The language in all opinions must be construed with reference to the particular subject under investigation." To this we might add that the language in all opinions must...