Hagler v. State

• Decision Date: 08 October 1930
• Docket Number: No. 13563.,13563.
• Citation: 31 S.W.2d 653
• Parties: HAGLER v. STATE.
• Court: Texas Court of Criminal Appeals

31 S.W.2d 653

HAGLER v. STATE.

No. 13563.

Court of Criminal Appeals of Texas.

October 8, 1930.

Commissioners' Decision.

Appeal from Criminal District Court, Willacy County; Fred L. Wilson, Special Judge.

C. D. Hagler was convicted of assault with intent to rape, and he appeals.

Affirmed.

See, also, 28 S.W.(2d) 550.

Decker, Foster & Allen and A. B. Crane, all of Raymondville, for appellant.

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

MARTIN, J.

Offense, assault with intent to rape; penalty, ten years in the penitentiary.

The prosecutrix was a ten year old girl at the time of the alleged commission of the offense. She testified that appellant took her to his room at the hotel, and occurrences were testified to as having happened there which made out the offense charged. She was corroborated by other witnesses. Appellant did not testify, resting his case with proof of good character and with testimony of witnesses who contradicted the evidence of the state.

Many legal propositions are stressed in the argument of appellant's counsel, but practically all of these are without proper bills of exception to support them.

It is urged that the court erred in overruling appellant's application for a continuance, but no bill of exception to the court's action appears in the record. An order entered on the minutes of the district court showing the notation of an exception is not sufficient. Branch's P. C. § 304; 4 Tex. Jur. § 151.

Arguments of state's counsel were objected to. These are raised only by special charges requested, there being no bills of exception with certificate of the trial judge that the language set out in such charges was in fact used. This presents nothing for review. Branch's P. C. § 209; Ross v. State, 110 Tex. Cr. R. 285, 7 S.W.(2d) 578; Wall v. State, 110 Tex. Cr. R. 116, 7 S.W.(2d) 958; Maxey v. State, 104 Tex. Cr. R. 661, 285 S. W. 617.

Many bills of exception appear in the record without any background. None of the surrounding facts and circumstances are set out. The rule is stated in 4 Tex. Jur. par. 216, as follows: "Enough of the surrounding facts and circumstances must be stated to enable the appellate court to determine the merits of the bill and the correctness of the ruling involved, and to show that the evidence was inadmissible and the ruling was erroneous and hurtful to the cause of the appellant, unless its objectionable character is self-evident. The bill should show the connection or setting in which the evidence came into the case where this is necessary in order to determine its admissibility or effect."

Again it has been stated in paragraph 217 of the same authority: "In accordance with the general rule, a bill of exception complaining of the admission of evidence must be complete within itself. It must in and of itself disclose all that is necessary to manifest the supposed error, and the court must be able to determine from the bill itself, without reference to the statement of facts, or other parts of the record, whether the objection was well founded."

See, also, 4 Tex. Jur. §§ 218, 219, 220, 222, for statement of the rules which control the disposition of practically all of appellant's bills of exception.

Complaint is made of the action of the court in overruling appellant's motion for change of venue. We regard the evidence presented in the record here as sufficient to make an issue of fact as to whether there existed so great a prejudice against appellant as prevented his obtaining a fair and impartial trial. The rule is stated that, "unless it is clear that the trial court has abused or arbitrarily exercised his judicial discretion, his action in refusing a change of venue will be sustained on appeal." Branch's P. C. § 299; Dupree v. State, 2 Tex. App. 613; Noland v. State, 3 Tex. App. 598; Barnett v. State, 76 Tex. Cr. R. 555, 176 S. W. 580, 583.

The appellant in various ways raises the question of the court's disqualification to try the instant case. It appears that, in the absence of the regular judge, the lawyers present elected Hon. Fred L. Wilson as special judge. It appears that Judge Wilson had only been in Willacy county for about five months, that his family resided in Ellis county, and that he had not moved with his family to the Twenty-Eighth judicial district where this trial was had; it being contended that ...