Opinion
No. 27485.
March 16, 1955.
Appeal from the Criminal District Court No. 2, Harris County, Langston G. King, J.
No attorney on appeal.
Dan Walton, Dist. Atty., Eugene Brady, Jr., Asst. Dist. Atty., Houston, Leon Douglas, State's Atty., Austin, for the State.
The conviction is for murder without malice; the punishment, five years in the penitentiary.
The jury rejected appellant's claim of self-defense and declined to recommend a suspension of sentence.
The sufficiency of the evidence is not challenged and need not be discussed. Suffice it to say that the evidence shows that the deceased met his death at the hands of the appellant, death having resulted from a stab wound in the heart, and other stabs and cuts were inflicted upon him by appellant with a knife having a three and one-half inch blade.
Only one bill of exception is found in the record. It complains of the overruling of appellant's amended motion for new trial based upon the contention that after the verdict, appellant and his counsel for the first time learned that the state's witness Era Belle Cavanaugh, who testified on the trial that she witnessed the difficulty, had made a statement to the officers and nowhere therein said that she saw the defendant. The bill further shows that appellant contended in his motion that in fact the witness Era Belle Cavanaugh did not see the defendant strike at the deceased and her testimony to that effect was perjured and untrue.
The testimony heard on the motion did not sustain the allegation that the testimony of the witness was false. At most, it showed only that the written statement made to the officers was not complete.
The trial court did not err in overruling the motion for new trial.
The evidence is sufficient to sustain the conviction and no reversible error appears.
The judgment is affirmed.