Longley v. State

Citations

• 3 Tex. Ct. App. 611

Syllabus

<p>1. Practice rtf the Court oe Arreáis. —A series of adjudications has firmly established the general rule that, without a statement of the facts in evidencebefore the courtbelow, this court on appeal will only consider whether the indictment will sustain the instructions given to the jury, and the judgment rendered.</p> <p>2. Practice — Statement rnr Pacts. — Though a convicted defendant has failed to move for a new trial, the Code entitles him, if he appeals, to have a statement of the facts certified and sent up with the record; but it is the duty of the parties in the first instance to make out the statements, and, if they disagree, it then devolves upon the judge to make out the statement from those of the parties and his own knowledge. The judge is not required to make out the statement in the first instance and of his own motion.</p> <p>3. Murder —Indictment. — The kind of malice, whether express or implied, need not he distinctly alleged in an indictment for murder; nor is it necessary to aver the portion of the body upon which the mortal wound was inflicted.</p> <p>4. Ohar&e oe the Court. — The jury in a murder case were instructed that “the indictment charges that the homicide was committed in the month of March, 1875, and the evidence shows such to have been the case.” No exception was taken to this assumption of what the evidence proved, and no statement of facts is brought up in the record. Held, that the only question here is whether this error was calculated to injure the rights of the accused, and that, without the evidence before it, this court cannot perceive that it was.</p>