Opinion
No. 19263.
Delivered January 19, 1938.
1. — Murder — Dismissal of Appeal — Affidavit Based on Information and Belief.
Appeal from conviction for murder would not be dismissed upon affidavit filed by deputy sheriff to the effect that the defendant had died since filing his appeal, where the affidavit was based entirely upon information and belief.
2. — Affirmance — Statement of Facts — Bills of Exception.
Where the record is before the appellate court without statement of facts or bills of exception judgment affirmed.
Appeal from the Criminal District Court of Dallas County. Hon. Grover Adams, Judge.
Appeal from conviction for murder; penalty, confinement in penitentiary for 99 years.
Motion to dismiss appeal overruled, and judgment affirmed.
The opinion states the case.
Maury Hughes and Curtis, Gauldin Cunningham, all of Dallas, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is murder; the punishment, confinement in the penitentiary for 99 years.
The record is before us without a statement of facts or bills of exception.
An affidavit has been filed herein by a deputy sheriff of Dallas County to the effect that he has been informed that since filing the appeal appellant has died. It appears from the affidavit that, prior to appellant's trial in the present case, he had been convicted in a federal court and sentenced to a term in the Leavenworth penitentiary. The affidavit of the deputy sheriff recites that his information as to appellant's death was received from federal authorities. In short, the affidavit is based entirely upon information and belief. Under the circumstances, we would not be warranted in dismissing the appeal.
The motion to dismiss the appeal is overruled and the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.