Demus v. State

Decision Date14 November 1928
Docket Number(No. 11693.)
PartiesDEMUS v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Midland County; Chas. L. Klapproth, Judge.

Allen Demus was convicted of murder, and he appeals. Affirmed.

Jno. F. Weeks, of Odessa, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.


Conviction for murder; punishment, ten years in the penitentiary.

In the preparation of an opinion heretofore handed down, we overlooked a very important fact, viz. that the bills of exception were not filed in time to be considered, and in view of this fact, the former opinion is withdrawn and the following substituted therefor:

The facts in this case are deemed sufficient to support the verdict and judgment. Deceased had been keeping company with the wife of appellant subsequent to the granting of a divorce from appellant, theretofore obtained by her. On the day of this homicide, appellant and his wife went to Big Springs and were remarried. They returned to Midland that night and apparently went to the house occupied by appellant's wife. A woman named Anderson was there with them. Deceased came to said house after dark, knocked, and wanted to see appellant's wife. She was partly disrobed, but dressed herself, went to the door, and informed deceased that she was remarried to appellant. Deceased asked for his flash light, which the woman had, and then asked if he could see her outside. Appellant then struck deceased, knocking him to the ground. The Anderson woman testified that appellant had a pistol in his hand when he assaulted deceased; that she looked away for some reason, but heard a lick that sounded like something "split or cracked," and saw deceased fall. She said, when appellant struck deceased had one hand up on the door and reached up with the other hand and took a cigar out of his mouth. After knocking deceased down, appellant kicked and stamped him in the body and head repeatedly. Deceased died in a short time. His ribs and breast were crushed, and a severe head wound also appeared, causing the doctor to think it probable that he had a fractured skull. The man was in a dying condition when the doctor got to him and never gained consciousness. The doctor testified that death resulted from the injuries.

The record contains ten bills of exception, all of which were filed on January 31, 1928. Appellant's motion for new trial was overruled, and notice of appeal given on November 17, 1927. The order overruling said motion sets up that notice of appeal was given, but makes no reference to the granting of any time to appellant in which to file statement of facts and bills of exception. For some reason appellant seems to have again given notice of appeal when sentenced on November 18th, but this order also fails to show that he was then granted any time in which to file bills of exception and statement of facts. From the record we observe that on January 14, 1928, appellant procured an order of the court granting him 20 days in which to file bills of exception and statement of facts, "in addition to the 60 days time which was granted defendant at the time his motion for new trial was overruled."

Our statute (article 760, C. C. P.) grants to every person convicted of crime, who appeals his case, 30 days "after the date of adjournment of court," with or without court order, in which to file bills of exception. The court below may make an order during the trial term granting any period of time within which...

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2 cases
  • Ferguson v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 27, 1963
    ...a record entry or minutes of the court, but feel that we are compelled to follow the holdings of this Court in Demus v. State, 111 Tex.Cr.R. 237, 16 S.W.2d 251, and Aubrey v. State, 114 Tex.Cr.R. 466, 26 S.W.2d 213, which say that the docket entry may furnish a basis for the trial court to ......
  • Mirelez v. State
    • United States
    • Texas Court of Criminal Appeals
    • December 7, 1960
    ...accept mere docket entries in lieu of judgments and orders. 4 Tex.Jur. 176, sec. 126, Appeal and Error--Criminal Cases; Demus v. State, 111 Tex.Cr.R. 237, 16 S.W.2d 251. We have again considered appellant's complaint of the court's charge and remain convinced there is no fundamental error T......

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