Garcia v. State

• Decision Date: 22 May 1901
• Citation: 63 S.W. 309
• Parties: GARCIA v. STATE.
• Court: Texas Court of Criminal Appeals

63 S.W. 309

GARCIA v. STATE.

Court of Criminal Appeals of Texas.

May 22, 1901.

Appeal from district court, El Paso county; A. M. Walthall, Judge.

Edelbert Garcia was convicted of murder in the second degree, and he appeals. Affirmed.

Uvalde Burns and N. A. Rector, for appellant. W. H. Nunn and Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 50 years' confinement in the penitentiary. In his motion for new trial appellant complains that he was not arraigned. In the absence of a bill of exceptions, this matter cannot be reviewed. The judgment, however, shows that defendant was arraigned. See Acts 25th Leg. p. 11.

He also complains in his motion for new trial that the evidence is not sufficient to sustain the verdict of the jury for murder in the second degree. The jury has passed upon this question, and, as we think the evidence supports their finding, we see no reason for disturbing the jury's verdict.

By bill No. 1, he complains that the court permitted state's counsel to have the witness Roy amend his controverting affidavit filed on motion for new trial. Complaint is made on the ground "that it is obnoxious to criminal practice, and has been severely criticised by the ablest jurists of the state and by the courts of the country." While we would not be understood as dissenting from this last proposition in so far as it refers to changing the facts of a previous affidavit, still we have never denied the right of state or defendant to amend an affidavit, and put in facts omitted from a previous affidavit, or even to qualify a statement subsequently learned to be untrue, with the knowledge and consent of the affiant. Appellant shows no injury in this matter, and, as presented, it is not cause for reversal.

He also urges in his motion for new trial that A. L. Roy sat as a juror in this case. It appears that Roy served in the case of Tellis v. State (Tex. Cr. App.) 61 S. W. 717, as a juror, which case involved many of the facts of this. From the affidavit of the juror, however, it appears that counsel for defendant in this case was also counsel for Tellis in the other case, and consequently knew the juror Roy had previously served as a juror in the Tellis Case. The motion setting up this matter does not controvert this fact. We do not think appellant can complain of this, in view of the previous knowledge of these facts prior to his acceptance as a...