Suesberry v. State

Decision Date10 December 1913
PartiesSUESBERRY v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from Criminal District Court, Harris County; Sam'l J. Styles, Judge.

Charles Suesberry was convicted of manslaughter, and he appeals. Affirmed.

J. M. Gibson and W. W. Wander, both of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant on this trial was convicted of manslaughter, and his punishment assessed at two years' confinement in the state penitentiary.

The first two grounds in the motion for a new trial complain of the action of the court in admitting the testimony of the witnesses E. B. Sisk and John Price. As no bills of exception were reserved to the introduction of the testimony of these witnesses, the record does not disclose that this testimony was objected to at the time of its introduction, nor during the trial of the case, and after verdict it is too late to object to the introduction of testimony admitted on the trial of the case.

The third ground of the motion for a new trial reads as follows: "The court erred in giving special charges 1, 2, 3, 4, as requested by the defendant." Of course the court would not err in giving a special charge requested by the person on trial, for, if error there be in giving such charge, it would be error invited by defendant in requesting such instruction. However, while the motion for a new trial reads as indicated above, yet the record discloses that such special charges were not in fact given but were marked "refused" by the court, and the question arises: Is the objection too general to be considered? In this ground of the motion there can be no doubt that the exception is too general to be considered. However, the next ground in the motion complains that the court erred in failing to "charge the jury that, if they believed that septic poison was introduced into the wound by the cloth sweater or towel placed there by the witness Price after the cutting, they should acquit the defendant of the charge of murder or manslaughter." The court did in fact so charge the jury in paragraphs 14 and 15 of the charge. These are all the grounds alleged in the motion for a new trial, which was overruled by the court. After the motion for a new trial had been overruled by the court, what is termed "an amended motion for a new trial" was filed without leave of the court to do so being obtained, and which was never acted on by the trial court. Under such circumstances the amended motion for a new trial cannot be considered by us.

The judgment is affirmed.

On Motion for Rehearing.

Appellant files a motion for a rehearing in which he has the clerk to certify the "motion docket" shows that leave was granted to file an amended motion for a new trial, and that same was overruled by the court; the certificate reading: "I, Max Andrews, clerk of the criminal district court of Harris county, Tex., do hereby certify that the foregoing is a true and correct copy of the original entry as it appears on the motion docket of the criminal district court of Harris county." This term of court adjourned on the 3d day of May, 1913, and no order or judgment was entered in the minutes of this court, but, since the original opinion was rendered by this court, counsel for appellant has prevailed on the court to attempt to make a nunc pro tunc order; the order reciting...

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4 cases
  • Demus v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 14, 1928
    ...App. 321; Lenox v. State, 55 Tex. Cr. R. 259, 116 S. W. 816; Offield v. State, 61 Tex. Cr. R. 585, 135 S. W. 566; Suesberry v. State, 72 Tex. Cr. R. 439, 162 S. W. 849; Bullington v. State, 78 Tex. Cr. R. 187, 180 S. W. The motion for rehearing is overruled. ...
  • Aubrey v. State, 13051.
    • United States
    • Texas Court of Criminal Appeals
    • February 26, 1930
    ...App. 321; Lenox v. State, 55 Tex. Cr. R. 259, 116 S. W. 816; Offield v. State, 61 Tex. Cr. R. 585, 135 S. W. 566; Suesberry v. State, 72 Tex. Cr. R. 429, 162 S. W. 849; Bullington v. State, 78 Tex. Cr. R. 187, 180 S. W. The application for certiorari is denied, and the motion for rehearing ......
  • Bankston v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 1, 1916
    ...of this court down to this date, and follows the statute. Quarles v. State, 37 Tex. Cr. R. 362, 39 S. W. 668, Suesberry v. State, 72 Tex. Cr. R. 439, 162 S. W. 849, and a large number of cases collated under article 916, 2 Vernon's Ann. C. C. P. p. 879, and section 258, 1 Branch's Ann. P. C......
  • Ex Parte Christian
    • United States
    • Texas Court of Criminal Appeals
    • May 21, 1924
    ...in the minutes and that a mere showing of a docket entry is not sufficient. The matter is discussed at some length in Suesbey v. State, 72 Tex. Cr. R. 441, 162 S. W. 849. For the reasons therein stated, the motion for rehearing will be ...

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