Jaramillo v. State

HAWKINS, Presiding Judge.

Conviction is for assault to murder without malice, punishment assessed being three years in the penitentiary.

This is the second appeal. The opinions on the first appeal will be found reported in 151 Texas Cr. Rep. 34 , 204 S. W. (2d) 622 .

From certain motions found in the transcript it appears that appellant was attempting to raise some question about the legality of tlye grand jury which returned the indictment, and also regarding the substitution of an indictment for the original which had been lost. These same questions were raised on the former appeal and were decided against appellant as is apparent from the opinions. That seems to have become the law of the case, and it is doubtful if the same questions would again be considered. However, waiving that point, the record now before us is such that the questions can not properly be considered for the following reasons, even if they could have again been raised. The motion for new trial was overruled on the 22d day of June, 1948, and 60 days from said date granted for filing of bills of exception. No bills of exception preserving the points sought to be raised are in the record. The court heard evidence upon the motions mentioned, and there appears in the record what is denominated a “Narrative Transcript of Testimony — Motions — Other Matters.” This document was not approved by the trial court until the 5th day of November, 1948, and was filed in the trial court the same day. It cam neither be considered as a bill of exception, nor as a statement of facts heard on the motions. The 90 days allowed by statute for filing statement of facts expired on September 20, 1948.

The statement of facts on the main trial was approved on *602 September 17, 1948, and filed in the trial court on September 18, which was within the 90 days. The evidence so brought forward has been examined and bountiful^ supports the verdict and judgment, and same is ordered affirmed.