Vinson v. State

• Decision Date: 20 October 1915
• Docket Number: (No. 3719.)
• Citation: 179 S.W. 574
• Parties: VINSON v. STATE.
• Court: Texas Court of Criminal Appeals

179 S.W. 574

VINSON v. STATE.

(No. 3719.)

Court of Criminal Appeals of Texas.

October 20, 1915.

Appeal from District Court, Grayson County; M. H. Garnett, Judge.

Dick Vinson was convicted of assault to murder, and he appeals. Affirmed.

H. P. Abney, B. W. Cornelius, and Head, Dillard, Smith, Maxey & Head, all of Sherman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at two years' confinement in the state penitentiary.

The term of court at which appellant was tried adjourned on the 15th day of May, 1915. Two months thereafter, July 15, 1915, in vacation, appellant filed what are termed "assignments of error," and in which he complains of the charge of the court as given, for the first time. On the trial of the case no special charges were requested, and no exception reserved to the charge of the court. In the motion for a new trial there is no attempt made to point out any error in the charge, but in the "assignments of error," filed after the court had adjourned, several paragraphs of the charge are alleged to be erroneous, and the brief filed in this cause by able counsel deals almost exclusively with what they claim in the assignments of error to be errors in the charge of the court, but which were not complained of in the motion for a new trial. Why is a motion for a new trial required to be filed? It is to enable the trial court to correct his own errors, if errors there be, in the trial of the case, and it is not fair to the trial court to seek to present error in the record to this court to which his attention was not called. It is the rule in this state in all the appellate courts now that all grounds relied on to present error must be contained in the motion for a new trial filed in the court below. The rules adopted by the Supreme Court now provide:

"All errors not directly specified in the motion for a new trial shall be waived." Rule 101a (159 S. W. xi).

The Constitution and laws of this state authorize the Supreme Court to adopt rules for the government of all the courts in this state, and such rules govern, when not in conflict with some statutory provision. Of course, it is provided that fundamental error may be presented at any time. But in the brief no fundamental error in the proceedings is pointed out. The indictment charges the offense of which appellant was convicted. The charge of the court submits this offense to the jury, and while it may not have submitted all the issues made by the testimony in a manner entirely satisfactory to appellant at this time, apparently it did so at the time of the trial, for no complaint was then made, and no special charges were requested.

In Ross v. State, 170 S. W. 305, we had occasion to review the decisions of our appellate courts since the Legislature has seen proper to provide that the charge of the court must be submitted to counsel before being read to the jury, and if counsel object to any portion thereof, or do not think it presents any issue fully or correctly, or does not present all the issues raised by the evidence, it shall be the duty of counsel to at that time, in writing, direct the attention of the court to such error of omission or commission. This rule the Legislature had the right to prescribe, and if it is thought not to be in the interest of justice, application should be made to the Legislature to change it, and not expect the appellate courts to ignore or emasculate this legislative provision. Assignments of error, filed in vacation, have no place in a transcript in a criminal case. The motion for a new trial is what we look to, and that alone. Harvey v. State, 57 Tex. Cr. R. 7, 121 S. W. 605; Jones v. State, 55 Tex. Cr. R. 207, 116 S. W. 1147; Veas v. State, 55 Tex. Cr. R. 125, 114 S. W. 830; Sue v. State, 52 Tex. Cr. R. 122, 105 S. W. 804. In Sue v. State this court said:

"We wish * * * to again repeat, what we have frequently said, that it is a useless consumption of paper and an unnecessary incumbrance of the record to put an assignment of errors in a record sent to this court. Article 723 of the Code of Criminal Procedure limits our consideration to assignments in the motion for a new trial and to bills of exceptions. We cannot take cognizance of any assignment of errors that is not thus placed in the record. Therefore we again urge the bar of Texas not to incumber the records sent to this court with any more assignments of errors. No complaint of the charge of the court, or ruling of the court, can be considered by us, unless said complaint is embodied either in a motion for a new trial or in a bill of exceptions."

Thus it is seen we must and can consider only such matters as are complained of in the motion for a new trial and bills of exceptions filed in the court below. In the motion for a new trial, the first complaint is: "The court erred in its charge to the jury." That is all of the ground; no error is attempted to be pointed out to the trial...