Opinion
No. 1460.
Decided October 18, 1911.
1. — Murder — Withdrawing Appeal.
An application to withdraw notice of appeal must be made by the appellant in person and must be sworn to by him.
2. — Same — Bill of Exceptions — Venire.
Where no bill of exceptions was reserved to the court's refusal to quash the venire, the matter could not be considered on appeal.
3. — Same — Charge of Court — Statement of Facts.
In the absence of a statement of facts, it will be presumed that the court's charge presented the law applicable to the facts.
4. — Same — Verdict — Correction.
Where the court caused misspelling of words in the verdict to be corrected before the discharge of the jury, there was no error.
Appeal from the District Court of Matagorda. Tried below before the Hon. Wells Thompson.
Appeal from a conviction of murder in the second degree; penalty, five years imprisonment in the penitentiary.
The opinion states the case.
Linn, Conger Austin, for appellant.
C.E. Lane, Assistant Attorney-General, for the State.
Appellant was indicted by the grand jury of Matagorda County, charged with murder, and upon a trial, he was convicted of murder in the second degree.
We find with the papers a motion to advance this cause, and an application to withdraw the appeal, signed by appellant's counsel. This court has uniformly held that an application to withdraw notice of appeal filed in this court must be made by the appellant in person, and be sworn to by him, and appellant in person not having made an application to withdraw the appeal, the application can not be granted.
However, no statement of facts accompanies the record, and there are no bills of exception embraced therein, consequently no question is presented in the motion for a new trial which would call for a reversal of this case.
The first three grounds in the motion complain of the action of the court in refusing to quash the venire drawn. No bill of exception having been reserved to the action of the court in refusing to quash the venire, nothing is presented that we can review.
The record contains three special charges requested by appellant, which were refused. There being no statement of facts in the record, this court will presume that the court, in his charge, presented the law and all the law applicable to the testimony.
The verdict of the jury as first returned, misspelled the words "jury," "guilty," "imprisonment," and "penitentiary.' The court, before the final discharge of the jury, corrected the verdict in those particulars, and submitted same to them, which changes were agreed to by the jury. In this there was no error, even if there was a bill of exceptions thereto.
The other matters mentioned in the motion can not be reviewed in the absence of a statement of facts.
The judgment is affirmed.
Affirmed.
Davidson, Presiding Judge, absent.