Smith v. State

Citations

• 1 Tex. Ct. App. 516

Syllabus

<p>1. Appeal.—In 1873 the appellant was tried and found guilty of an assault with intent to murder, but no final judgment was then rendered against him; notwithstanding which he gave notice of appeal to the supreme court and filed a transcript therein. At the ensuing term of the supreme court his attempted appeal was dismissed on suggestion of his escape. Being arrested in 1876, judgment final, nunc pro tunc, was entered on the verdict rendered at the former term, and he appealed therefrom to this court. Held, that the attempted appeal before the final judgment was nugatory, and that the case is now for the first time properly before an appellate tribunal on appeal.</p> <p>2. Oath to the Jury.—If the record of a felony case merely states that the jury were duly or legally sworn, this court will presume that the oath administered was the oath prescribed by the statute. But-when the record shows that a different oath was administered to the jury, no presumptions can he indulged, and the judgment of conviction must be set aside.</p> <p>3, Charge to the Jury.—Though the definition of the offense charged need not he given to the jury in the words of the statute, yet the jury should be instructed as to the nature, elements, and ingredients composing the offense.</p>