Gant v. State

• Decision Date: 18 March 1914
• Citation: 165 S.W. 142
• Parties: GANT v. STATE.
• Court: Texas Court of Criminal Appeals

165 S.W. 142

GANT v. STATE.

Court of Criminal Appeals of Texas.

March 18, 1914.

Appeal from District Court, Marion County; H. F. O'Neal, Judge.

Joel Gant was convicted of murder, and he appeals. Affirmed.

R. R. Taylor, of Jefferson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at 17 years confinement in the penitentiary.

The record before us contains several bills of exception relating to the admissibility of certain testimony. These bills were not filed until after court adjourned, and in the motion for a new trial no complaint is made in regard to any of these matters. Our Constitution has provided that the Supreme Court may make rules for the government of proceedings in all the courts in this state, and the Supreme Court has provided in its rules that, in a motion for a new trial filed in the trial court, all grounds relied on shall be stated, or the court on appeal will not consider such grounds. Rules, 142 S. W. vii et seq. In the motion for a new trial the matters complained of in these bills of exception were not presented to the trial court as a reason why he should grant a new trial, and they are presented to us in bills of exception filed after term time. Of course, the bills can be filed after term time if the matter is presented to the trial court in the motion for new trial, but hereafter, to authorize this court to review these matters, the record must disclose that they were presented to the trial judge in the motion for a new trial, and that he overruled them. Motions for a new trial are required to be filed that the trial judge may correct his own errors, if error there be; it is not fair to him to present a matter to us and ask that we reverse a ruling which he was given no opportunity to rule on. We call attention to this matter, and will expect and require attorneys to present all the grounds upon which they rely in the motion for new trial filed in the court below.

As frequently said by this court, "assignments of error," other than the motion for new trial, have no place in the record, and will be stricken therefrom. However, we have read these bills, and they present no error in the ruling of the trial court. The first relates to the testimony of Dr. Lake, who testified as to statements made to him by deceased. It is manifest that deceased had no hope of recovery and knew that death was certain, and the statement made was clearly admissible under the rules governing dying declarations. In the second bill it is claimed the court erred in admitting the testimony of Matilda Howard, who...