
    HILL v. STATE.
    (No. 11272.)
    Court of Criminal Appeals of Texas.
    Dec. 21, 1927.
    Rehearing Denied Feb. 8, 19-28.
    1. Criminal law &wkey;>l086( 14) — Special charges, to be considered on appeal, must show by separate bill of exceptions or notation that they were timely presented.
    Special charges cannot be considered by Court of Criminal Appeals, unless, either by separate bill of exceptions or proper notation on charge itself, fact is made known to appellate court that charge was timely presented.
    2. Criminal law <&wkey;>!086(l4) — Refusal of requested special charges not showing on face, or by notation, or by bill of exceptions, that they were presented after evidence and before- main charge, presented nothing for review.
    Where requested special charges did not show on their face, or by any notation of approval by trial court, that they were presented to court after evidence was closed and before main charge was given, and there were no bills of exception in record, complaint of refusal of charges presented nothing for review.
    3. Robbery <&wkey;>24(3) — Evidence held sufficient to convict defendant for robbery.
    In prosecution for robbery, evidence showing that prosecuting witness was held up by two men, one of whom had pistol, and robbed of considerable money, that defendant was identi fled by prosecuting witness and another as person committing robbery, and that defendant possessed pistol, held sufficient to support conviction.
    On Motion for Rehearing.
    4. Criminal law <&wkey;!086(l4) — Indorsement by judge on refused special charges that charges were “refused, to which’defendant excepted,” held not to show charges were timely presented.
    That refused special charges bear indorsement of judge’s signature that they were “refused, to -which defendant excepted,” does not comply with requirement that charges to be reviewed must be made to appear to ha-ve been presented before main charge was read to jury.
    Appeal from District Court, Victoria County; John M. Green, Judge.
    Elbert Hill, alias Doc Hill, was convicted of robbery, and he appeals.
    Affirmed.
    Douglas, Carter & Black, of San Antonio, and A. L. Love, of Austin, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   , LATTIMORE, J.

Conviction for robbery; punishment, 15 years in the Penitentiary.

There are no bills of exception in the record. There appear four special charges, none of which evidence, either upon the face of the charge, or by any notation of approval of that fact by the trial judge, that they were presented to the court after the evidence was closed and before the main charge was given. Special charges cannot be considered by this court, unless, either by separate bill of exceptions or proper notation on the charge itself, the fact is made known to us that same was timely presented. There is nothing before us except the sufficiency of the facts. These we have carefully reviewed. They seem to amply support the conclusion reached by the jury. The prosecuting witness testified that he was at the house of a woman who was evidently a prostitute; that while there some one came to the door on two occasions and knocked; and that the woman went out and talked to the party. Later the woman induced prosecuting witness to go with her apparently to see a doctor about the toothache from which witness was suffering. On the way he was held up by two men, one of whom had a pistol and .robbed him of quite a sum of money which witness had. He identifies appellant by his voice and appearance. The woman in the case was used as a state witness, and also testified that appellant was the man who did the robbing. Some question is raised in argument of the case as to the sufficiency of the proof that a pistol was used. We have no doubt upon such issue. A number of witnesses referred to the pistol had by the appellant, one man testifying that he gave the pistol to appellant; and others saw it and . described it.

Believing the evidence sufficient, and no error appearing, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

In Archbell v. State, 97 Tex. Cr. R. 337, 260 S. W. 867, will be found collated many cases holding that before complaint of refusal of special charges will be reviewed it must be made to appear that they were presented to the court before the main charge was read to the jury. The fact that such charges bear an indorsement over the judge’s signature that they were “refused, to which defendant excepted,” does not comply with the requirements mentioned. Eor aught the record shows, a delayed presentation may have been the cause of their refusal.

We have again reviewed the evidence, and it seems sufficient.

The motion for rehearing is overruled. 
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