Celeste v. State

BAKER, Judge. — The appellant was convicted of assault with intent to murder, and his punishment assessed at seven years in the penitentiary. The appellant was jointly indicted with John Celeste, Joe Celeste and Jimmie Ford for an assault with intent to murder upon one George Puccio on or about April 16, 1926. Under a severance, appellant was placed upon trial alone. The record discloses that the injured party was a merchant; that on the night of the alleged offense Jimmie Ford, at the request of his companions, went into the prosecuting witness’ store and bought a package of cigarettes, giving the prosecuting witness a dollar bill in payment thereof; that while the prosecuting witness was at the cash drawer getting change, appellant ran into the store, armed with a pistol; that the prosecuting witness called for his father, who appears to have been asleep in another room, whereupon appellant shot the witness twice. Jimmie Ford testified for the state to the effect that when *219 appellant fired, all of the parties ran out of the store, got in appellant’s automobile and drove away; and that when he asked appellant why he shot the prosecuting witness, appellant stated it was on account of the witness “hollering on him,” stating further that he told the prosecuting witness four times “not to holler.” The record discloses that Ford entered a plea of guilty to assault with intent to murder and his punishment was assessed at five years in the penitentiary, with a suspension of sentence. While the appellant failed to testify, he defended upon the ground of an alibi. We find in the record what purports to be a bill of exception complaining of the refusal of the court to grant appellant’s application for continuance for the want of the testimony of Douglas Phillips, who appeared and testified on the trial; a Mr. Honeycutt, and Maggie Revier. As to the other witnesses, while the bill is very indefinite and uncertain, it appears that they were not served with process and that no proper diligence was used to secure their testimony. We also find in the record what purports to be a motion by appellant to strike from the record the testimony of the witness Ford. The motion alleges that Ford, by entering a plea of guilty connected himself with the offense as a principal and co-conspirator, and that by reason of the jury having recommended a suspended sentence, this was equivalent to an acquittal, which rendered his testimony inadmissible against the other corconspirators. There is no merit in said motion, and the court did not err in overruling it. Bills of exception 1, 2, 3, 4, 5, 6, 7, 8 and 9 are in question and answer form and contain the remarks of the court and attorneys, thus contravening the statutes of this state and decisions of this court which require bills of exception to be in narrative form. For that reason we are unauthorized to consider these bills. Broussard v. State, 271 S. W. 385; Robbins v. State, 272 S. W. 176; Panyon v. State, 275 S. W. 1076; Horn v. State, 277 S.W. 653. In bill No. 10 appellant complains of the refusal of the court to instruct a verdict of not guilty because of the alleged failure of the state to prove any motive for the commission of the offense except by remote inference. This bill presents no error. In bills 11 and 12 complaint is made to the court’s refusal to give appellant’s special charges to the jury. Neither the special charges nor the bills of exception relative thereto show that said charges were presented at the time required by law and prior *220 to the time when the court read his general charge to the jury, in the absence of which showing this court is unauthorized to consider same. Clark v. State, 237 S. W. 260; Edge v. State, 275 S. W. 1010. The record discloses that the sentence in this case is not in conformity to the indeterminate sentence law, and it is here and now reformed so as to read that the appellant is sentenced for not less than two nor more than seven years in the penitentiary. Finding no reversible error in the record, the judgment of the trial court, as reformed, 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. Morrow, P. J., not sitting.