Lynch v. State

• Decision Date: 14 May 1913
• Citation: 156 S.W. 1182
• Parties: LYNCH v. STATE.
• Court: Texas Court of Criminal Appeals

156 S.W. 1182

LYNCH v. STATE.

Court of Criminal Appeals of Texas.

May 14, 1913.

Appeal from Collin County Court; H. L. Davis, Judge.

Scott Lynch was convicted of theft, and he appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This is a companion case to No. 2,388, Wilson v. State, 156 S. W. 204, recently affirmed by this court. There is only one bill of exceptions presented that can be considered. All the other bills are not signed or approved by the trial judge. The bill signed by the trial judge recites that after argument had closed, and before the charge had been given the jury, appellant presented a motion to dismiss the case, because the evidence would not show that any cotton was lost, and because the offense, if any, was committed in Dallas county, and the court overruled the motion. Thereupon defendant presented another motion to dismiss, because the state had not proved by any testimony that any cotton was taken from the possession of Jim Lewis, the prosecuting witness; that if any cotton was taken from the possession of Jim Lewis, the alleged owner, that the evidence did not show it was taken without his consent. Then follows this language: "Said motion is in words and figures as follows," but the motion is not included in the bill of exceptions; but, perhaps, that would be immaterial, as it is in the record. Again, the bill recites that in support of the motion to dismiss appellant offered the entire testimony of Jim Lewis, the alleged owner, taken at a former term of the court in the trial of John Wilson, a companion case, which had already been read in evidence, and which is in the record. This bill recites, "The said testimony of Jim Lewis is as follows;" but the testimony is not incorporated in the bill of exceptions. Under the rules prescribed by the Supreme Court, it seems this would not be sufficient; that where a bill of exceptions calls for the insertion of an instrument it must be inserted in the bill. However, the evidence of Lewis will be looked to anyway. The bill further recites: "Thereupon the court suggested that the state had proved want of consent by the defendant, and counsel for the defendant suggested to the court that it would not be competent to prove this by the defendant, because the state has to prove the corpus delicti, and the defendant is not required to take the stand until the state has proven the corpus delicti. Thereupon the court stated that, the defendant having testified that Lewis did not give his consent for him to take the cotton, the jury can look to any evidence in the case, whether offered by the state or the defendant, in determining any issue; and the court thereupon announced that he would overrule the motion. Thereupon counsel for the defendant announced that he desired to embrace in his...