Opinion
No. 12435.
Delivered April 3, 1929.
1. — Assault to Murder — Requested Charges — When Presented — Rule Stated.
To be considered on appeal, requested charges presented and refused must be shown to have been presented in the trial court after the evidence was closed, and before the main charge is read to the jury. See Arts. 658-59-60. Berlew v. State, 88 Tex. Crim. 241 and Norman v. State, 91 Tex.Crim. Rep..
2. — Same — Charge of Court — Exceptions to — When Presented.
Written exceptions to the court's charge must contain a certificate of the fact that they were presented to the trial judge at a time, and in the manner required by law. An endorsement on such exceptions "Overruled; Defendant excepts," to which is attached the certificate of the trial judge is not sufficient. See Gibbs v. State, 88 Tex.Crim. Rep..
Appeal from the District Court of Jackson County. Tried below before the Hon. John M. Green, Judge.
Appeal from a conviction for an assault to murder; penalty, ten years in the penitentiary.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Conviction for assault to murder; punishment, ten years in the penitentiary.
This record is here without any statement of facts or bills of exception. We find in the transcript three special charges, complaint of the refusal of which is brought before us in oral argument, but there is nothing upon any of the charges to indicate when, or at what stage of the proceedings said charges were presented to the court. Our statute is very definite upon this point and requires that such special charges be presented after the evidence is in and before the court reads his charge. Arts. 658-9-60. For aught we know from this record the court may have refused said charges because they were not presented after the evidence was closed, or before the charge of the court was read to the jury. Berlew v. State, 88 Tex.Crim. Rep.; Norman v. State, 91 Tex.Crim. Rep..
There appears in the record a document denominated defendant's objections and exceptions to the court's charge. This is signed by the attorney for the appellant. The only notation upon it is as follows: "Overruled; Defendant excepts," to which is attached the signature of the trial judge. We have said that this is not any certificate of the fact that such exceptions were presented to the trial judge at a time and in the manner required by law. Gibbs v. State, 88 Tex. Crim. 485. When the notation "Overruled" was placed upon this document by the judge, does not appear. The only thing that we can learn from such document is that at some time same was presented to the trial court and he made thereon the notation above stated. There being no statement of facts, we would be unable, in any event, to appraise such exceptions. Ruiz v. State, 48 Tex.Crim. Rep.; Jenkins v. State, 59 Tex. Crim. 475.
Finding no error in the record, the judgment will be affirmed.
Affirmed.