Golden v. State

• Decision Date: 10 April 1912
• Citation: 146 S.W. 945
• Parties: GOLDEN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 945

146 S.W. 945

GOLDEN v.STATE.

Court of Criminal Appeals of Texas.

April 10, 1912.

Rehearing Denied May 8, 1912.

Appeal from Travis County Court; R. E. White, Judge.

John Golden was convicted of knowingly sending a letter threatening to kill and to burn the property of another, and he appeals.Affirmed.

Dickens & Dickens, of Austin, for appellant.C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted for knowingly sending a letter threatening to kill, and to burn the property of one Almquist.He was convicted and given the lowest penalty, a fine of $100.

The prosecution was by complaint and information.The complaint was made by Geo. S. Matthews and sworn to before John E. Shelton, county attorney of Travis county.The information was made by Mr. Shelton as said county attorney and states on its face that it was based "on the oath of George S. Matthews, a competent and credible person, herewith filed."

In making out the transcript for this court, the clerk, in accordance with the instructions of appellant's attorneys, did not copy, as a part of the record, said complaint, because it was claimed that while it was with the filed papers of the cause it did not have the file mark of the clerk thereon.The Assistant Attorney General by agreement with appellant's attorneys, instead of having a certiorari, had sent up to be considered as a part of the record, if it could legally be done, a properly certified copy of this complaint.The appellant for the first time, in this court, raises the point that the said complaint had no file mark thereon.He did not in any way in the lower court make a motion to strike it out, quash it, or to strike out or quash the information, nor did he make a motion in arrest of judgment on that account, nor is there any bill of exceptions in the record raising the point.The clerk of the court below should have included, under the circumstances, said complaint as a part of the record, so that this court could pass upon the question instead of himself, or the appellant's attorney doing so.This, in our opinion, would be the proper practice.No reflection is intended upon either the clerk or appellant's attorney in the matter.They both, doubtless, acted upon what they believed to be correct.

In our opinion appellant's contention now made that this conviction cannot be sustained because of the want of a file mark on the said complaint is incorrect on four distinct grounds: First, that the question cannot be raised in this court for the first time; second, that under the facts disclosed, the statement by the county attorney in the information that the information is based on the said affidavit, which was filed therewith, was sufficient; third, that no possible injury is shown to the appellant by the file mark not being placed thereon, even if it was not placed thereon; and, fourth, that the only proper way to raise the question in the court below and present it here was by bill of exceptions showing the facts.State v. Elliott, 41 Tex. 224;Goss v. State, 40 S. W. 263;Kennedy v. State, 9 Tex. App. 400;Schott v. State, 7 Tex. App. 616;Stinson v. State, 5 Tex. App. 31;Castleman v. State, 43 S. W. 994.

There appears in the record a short paper filed by appellant's attorneys which states that the defendant in open court excepts to the charge of the court in some particulars in very general language.It does not show on its face, or otherwise, that even these objections were made at the time the court gave the charge to the jury, and said paper was not approved by the judge below as a bill of exceptions or otherwise.So that it cannot be considered for any purpose.

By another bill, which shows to have been filed on December 12, 1911—the term at which the trial occurred having adjourned on November 25, 1911—appellant shows that in open court, before a verdict was reached, the appellant excepted to the court's charge and filed the same in writing.After giving the style and number of the cause and the court where pending, it is: "Now comes the defendant in open court and excepts to the court's charge as same is not the law.That the court set out and read a purported letter to the jury in his charge thereby laying great stress on same, and for the reason the court charges the jury on a conspiracy, and gives a wrong charge on conspiracy, and no indictment charging conspiracy or that defendant acted with any one; and failed to charge on defendant's not being able to read or write or set up any defense of defendant's."These objections or exceptions are too general to require this court to pass on them, even in a felony case, and certainly are insufficient in a misdemeanor case, and especially when appellant requests no special charge on the subject to cure any of these claimed errors.Berg v. State, 142 S. W. 884;Ryan v. State, 142 S. W. 878, and authorities cited in said two cases.

The appellant has a bill of exceptions to the overruling of his motion for a new trial.He copies the motion therein of more than 8 typewritten pages, containing 17 separate and distinct grounds in his motion.The uniform holding of this court is that none of these separate grounds is thereby so raised as that we can pass upon it as a bill of exceptions.

In the motion for new trial there are...