Opinion
No. 18428.
Delivered June 17, 1936. Rehearing Denied (Without Written Opinion) October 21, 1936.
1. — Bill of Exceptions — Continuance.
Bill of exceptions complaining of failure to grant postponement of trial until defendant's attorneys arrived held not to show error, where court's qualification certified that said attorneys had not advised the court they represented defendant, never appeared during trial, did not file any motion for new trial, and never advised court they had any connection with case.
2. — Statement of Facts — Court Reporter.
Accused could not complain of action of court in appointment of a person who was not an official court reporter to report and transcribe the testimony, where the statement of facts was agreed to and filed by accused as a true and correct statement of all the facts proven at trial.
3. — Sodomy — Evidence.
In prosecution for sodomy, permitting State to introduce judgments of conviction in two other cases against accused held not error, where indictment, upon which accused was being tried, alleged that accused had theretofore been convicted of two felonies less than capital.
Appeal from the District Court of Red River County. Tried below before the Hon. N. L. Dalby, Judge.
Appeal from conviction for sodomy with prior convictions of two felonies less than capital; penalty, confinement in penitentiary for life.
Affirmed.
The opinion states the case.
C. A. Holloway, of Clarksville, and R. E. Eubank, of Paris, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The indictment under which appellant was tried and convicted charges the offense of sodomy, and contains averments showing that he has been previously convicted of two felonies less than capital. Because of repetition of offenses, the penalty assessed was confinement in the state penitentiary for life.
Appellant's first contention is that the court erred in not granting him a postponement of his trial until his attorneys, R. E. Eubank and H. L. Jones, arrived. The court qualified said bill of exception and in his qualification certifies that said attorneys had not advised the court they represented defendant, never appeared at any time during the trial, did not file any motion for a new trial, have never advised the court they had any connection with the case. The bill as thus explained by the court's qualification fails to show any error.
By bill of exception number two appellant complains of the action of the court in appointing a person who was not an official court reporter to report and transcribe the testimony. It appears that the statement of facts in this case was agreed to and filed by appellant as a true and correct statement of all the facts proven at the trial. This being true appellant has failed to show that injury resulted to him from the court's action. Hence we overrule his contentions.
By bills of exception numbers three and four appellant complains because the court permitted the State to introduce as evidence the judgment of conviction in causes No. 9485 and 9835, styled the State of Texas v. Lewis Choate, as the same appeared on the minutes of said court. This was admissible under the allegation in the indictment that appellant had theretofore been convicted of felonies less than capital.
We have carefully gone over the testimony and believe that it is sufficient to sustain the conviction.
No objections were made to the court's charge within the time prescribed by law.
No error appearing in the record, the judgment of conviction 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.