Kennedy v. State

Citations

• 9 Tex. Ct. App. 399

Syllabus

<p>1. Practice. —An indictment presented in the District Court on the 19th of August was by mistake of the clerk indorsed filed August 18th. The indictment being for a misdemeanor, it was transferred to the County Court, which tribunal, over the objections of the accused, permitted its clerk to correct the file-mark of the district clerk as to the date of filing the indictment. Held, error. If a correction of the file-mark was necessary, the case should have been sent back to the District Court, and the correction made in the court where the paper was originally filed, but it was not competent for the clerk of the County Court to correct or change what had been done in a different tribunal. Held, further, that the error . is immaterial, it appearing from the transcript that the District Court was in session both on the 18th and 19th of August, and by its entry of record fixed and perpetuated the fact and date of the nresentation of the indictment.</p> <p>2. Variance —Presumptions. —In cases of variance as to dates between the clerk’s file-mark on an indictment and the record-entry of its presentation, the latter will control, as its entries of record made during the sessions of court import verity, the presumption being that the court acts not only legally, but also accurately and correctly, with reference to dates and times.</p> <p>3. Charge op the Court. — An accused being on trial under a charge of aggravated assault and battery, the court charged the jury that “if they believed from the evidence that the defendant committed an assault and battery, utiattended with circumstances of aggravation, they should acquit him of aggravated assault and battery and find him guilty of simple assault.” Held, error. The charge is a substantial direction to the jury that they must convict the defendant of either an aggravated or simple assault, and leaves no option for an acquittal.</p> <p>4. Same. —In charging upon aggravated assault and battery, it is error to submit to the j