Opinion
No. 24708.
March 15, 1950.
1. — Indictment — Murder — Allegation — Sufficient.
In an indictment for murder an allegation that appellant killed deceased "by striking him with a piece of wood" is sufficient.
2. — Charge — Provoking the Difficulty — Not Discussed — Because of No Brief.
The court of criminal appeals cannot discuss appellant's complaint of the submission to the jury of an issue of "provoking the difficulty," where appellant filed no brief.
3. — Appeal — Motion to Withdraw — By Attorney — Insufficient.
A motion to withdraw the appeal signed by accused's attorney, alone, is not in compliance with the statute and is insufficient.
Murder. Appeal from district court of Gregg County; penalty, confinement in the penitentiary for 10 years.
Hon. Earl Roberts, Judge Presiding.
Affirmed.
No attorney for appellant of record on appeal.
R. L. Whitehead, Criminal District Attorney, David C. Moore, Assistant Criminal District Attorney, Longview, and George P. Blackburn, State's Attorney, Austin, for the state.
The appeal is from a conviction for murder with a penalty of ten years in the penitentiary.
Appellant has filed no brief in this case but his attorney presented for filing a motion for permission to withdraw the appeal, which was signed by the attorney alone. This motion was returned and not filed because the same is not in compliance with the statute.
The evidence amply sustains the jury's verdict and same will not be discussed.
It appears from the motion for new trial that two questions were raised. The first complained of the sufficiency of the indictment in that it alleged that appellant killed the deceased "by striking him with a piece of wood." Under many authorities we have held this to be sufficient. Beaver v. State, 63 Tex.Crim. R., 142 S.W. 11; Smith v. State, 123 Tex. Crim. 95, 57 S.W.2d 163; Cassell v. State, 154 Texas Crim. Rep. ___, 216 S.W.2d 813; and Dwyer v. State, 12 Tex. App. 535[ 12 Tex. Crim. 535].
The second complaint refers to paragraph No. 13 of the court's charge, wherein is submitted an issue of provoking the difficulty. In the absence of a brief by appellant we are not able to discuss this question and consider that none is necessary.
Finding no reversible error, the judgment of the trial court is affirmed.