Kosmoroski v. State

• Decision Date: 13 April 1910
• Parties: KOSMOROSKI v. STATE.
• Court: Texas Court of Criminal Appeals

127 S.W. 1056

KOSMOROSKI v. STATE.

Court of Criminal Appeals of Texas.

April 13, 1910.

Rehearing Denied May 11, 1910.

Appeal from Falls County Court; W. E. Hunnicutt, Judge.

Frank Kosmoroski was convicted of aggravated assault, and he appeals. Affirmed.

Spivey, Bartlett & Carter, for appellant. Frank Oltorf, Asst. County Atty., and John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

Appellant was convicted of aggravated assault, and his punishment assessed at a fine of $25.

In the absence of a bill of exceptions in the record, appellant's application for continuance cannot be considered.

In the motion for new trial appellant complains that the court erred in its charge to the jury; the ground of the objection being that the charge is an abstract statement of the law, and does not apply the law to the evidence. Complaint is not made that as far as it went the charge was incorrect. This court has held in a number of cases that before a defendant charged with a misdemeanor can complain on appeal of the giving or failure to give instructions, he must have presented a written request for special charges in the trial court. The record does not disclose that appellant asked any special charges, and therefore we would not be authorized to reverse the case for any omission in the charge of the court. See Thurston v. State, 125 S. W. 31; Abbott v. State, 42 Tex. Cr. R. 8, 57 S. W. 97; Williams v. State, 53 Tex. Cr. R. 396, 110 S. W. 63; Tracey v. State, 42 Tex. Cr. R. 494, 61 S. W. 127; Gruesendorf v. State, 56 S. W. 624.

Bill of exceptions No. 2 complains that the court should not have submitted to the jury a charge to the effect that if one who is at the time of attempting to commit a battery under such restraint as to deprive him of the power to act, or who is at so great a distance from the person assaulted as that he cannot reach his person by use of the means with which he makes the attempt, is not guilty of an assault; the objection being that there is no testimony in the record calling for such a charge, and that it was submitting an issue in the case not raised by any of the testimony. If anything this charge might be considered more favorable to the defendant than the defendant could ask, and simply because the court submits an abstract proposition not applicable, would not authorize this court to reverse unless there is something in the record that would suggest that it was liable to injure the appellant. The appellant does not suggest how or in what manner this charge was prejudicial to his cause, and, in the absence of such showing, this court will not reverse for such errors.

Appellant complains in his bill of exceptions No. 3 that the court erred in forcing him to go to trial before a jury summoned by the sheriff, and not selected in the manner required by law. The bill of exceptions discloses that the case was set for trial on Monday, September 6, 1909, and that at that time there was a jury which had been regularly drawn by the jury commissioners in attendance upon the court for the trial of cases during that week; that at the suggestion of appellant this case was postponed until Friday of said week. When the case was called for trial on Friday, defendant had been informed by the court that the regular jury had been discharged on Wednesday, and no jury was then in attendance upon the court. The defendant thereupon moved the court to postpone the trial of the case to one of the following weeks of said term of court, or to continue the cause until the next term of court, that he might have the benefit of a trial before a jury regularly drawn. This motion was denied, and the sheriff ordered to summon a jury to try the cause. The court appends the following qualification to this bill: That all of the criminal cases on the docket were set for trial on Monday, Tuesday, and Wednesday of the week beginning on Monday September 6th, that this case was set for trial on Monday, and that at that time there was a regular jury for the week selected as required by law. The appellant requested that the setting of this case be postponed till Friday, September 10th; that this was the only week for the trial of criminal cases;...