Dunn v. State

• Decision Date: 28 May 1913
• Citation: 158 S.W. 300
• Parties: DUNN v. STATE.
• Court: Texas Court of Criminal Appeals

158 S.W. 300

DUNN v. STATE.

Court of Criminal Appeals of Texas.

May 28, 1913.

On Motion for Rehearing, June 25, 1913.

Appeal from Hood County Court; W. L. Dean, Judge.

R. B. Dunn was convicted of assault, and he appeals. Affirmed.

J. T. Daniel, of Stephensville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Information and complaint was filed against appellant, charging him with aggravated assault; when tried he was convicted of simple assault, and his punishment assessed at a fine of $15.

Appellant filed a motion in arrest of judgment on the ground that in the body of the complaint the person who made it is called Lon Lowe, while it is signed A. P. Lowe; the contention being that there is no proof that Lon Lowe and A. P. Lowe was one and the same person. Under all the decisions of this court, it was unnecessary to name the person swearing to the complaint in the body of the complaint, and, being unnecessary to state the name in the body, this presents no variance. In the case of Malz v. State, 36 Tex. Cr. R. 450, 34 S. W. 267, in the body of the complaint, it stated that R. L. Winfrey was the complainant, while it was signed at the bottom by William Jackson, and in that case the court says: "In the body of the complaint it is not necessary to state the name of the party making the complaint or affidavit at all. The statute requires that the name of the party making such complaint must be signed at the foot of the complaint, and not elsewhere" — and therefore the motion to quash was properly overruled. All of our decisions so hold.

This is a misdemeanor complaint and conviction, and there are no bills of exception in the record. In Brunk v. State, 60 Tex. Cr. R. 264, 131 S. W. 1125, this court, speaking through Presiding Judge Davidson, said: "In the absence of an exception taken at the time, and special instructions requested and refused, we would not feel justified under our practice to reverse a judgment for the supposed error in the charge, even if it be conceded to be error. * * * Under our statute and the decisions construing the statute, the rule in regard to exceptions to the charge in misdemeanors is different from that in felony cases. As before stated, in order for appellant to take advantage of the supposed error he should have excepted to the charge as given at the time, and requested a special instruction properly submitting that issue." See also Basquez v. State, 56 Tex. Cr. R. 330, 119 S. W. 861. As there were no exceptions to the charge of the court at the time of the trial, in fact in this case, there is none in the motion for new trial, so if the charge of the court should be erroneous, it is not presented in a way we could review it. Two special charges were requested, but no bills of exception were reserved to the failure of the court to give them. It seems that members of the bar will not take into consideration the difference in procedure...