
    HOLCOMB v. STATE.
    (No. 7671.)
    (Court of Criminal Appeals of Texas.
    May 30, 1923.
    Rehearing Denied June 20, 1923.)
    1. Criminal law <§»Í092(9) — Bill of exceptions held too late.
    Where, after the expiration of the 30 days allowed by Code Or. Proe. art. 845, from the adjournment of thp trial term, the trial judge made an order attempting to extend the time allowed for'filing bills of exception, such order was without authority, and a bill of exceptions subsequently filed was too late to be considered on appeal.
    2. Unlawful assembly <§=»I— Attempt with others to take negro from custody of officers held violation of statute.
    Where accused and more than three others at night attempted to take a negro from the custody of officers for the announced purpose of whipping him, accused was guilty of violating Pen. Code, art. 435, forbidding unlawful assemblage.
    On Motion for Rehearing.
    3. Criminal law <§=3878(2) —General verdict in misdemeanor indictment containing two counts held not error.
    In misdelneanor cases, where the offense charged in each count is the same, it being evident that the effort of the pleader was but to present two ways of committing the same offense, the verdict need not specify on which count the verdict was predicated, for in misdemeanor cases the accused may be convicted under more than one count, if separate offenses he charged.
    Appeal from Wichita County Court at Law; Guy Rogers, Judge.
    Mutt Holcomb was convicted of unlawful assemblage, and appeals.
    Affirmed.
    Buel R. Wood, of Electra, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court.at law of Wichita county of a violation of article 435 of our Penal Code, which forbids the unlawful assemblage of three or more persons if for certain purposes, and his punishment -fixed at a fine of $500.

There is but one bill of exceptions in the record. The trial term of the court below adjourned on December 2, 1922. Under the terms of article 845 of our Code of Criminal Procedure the accused, if convicted, had 30 days after the adjournment of the trial term in which to file his bills of exception. After the expiration of 30 days from the adjournment of the trial term of the court below, on January 4, 1923, the judge of said court made an order attempting to extend the time allowed for filing bills of exception. The time allowed by law having expired, as said by the lamented Judge Davidson in Griffin v. State, 59 Tex. Cr. R. 424, 128 S. W. 1134, there was nothing to extend. The attempted action of the learned trial judge was without authority of .law. The bill of exceptions mentioned was filed January 30, 1923, and cannot be considered by us, because filed too late.

The only question for our consideration is the sufficiency of the evidence to support the conviction, there being no attack upon the indictment, and no exceptions taken to the charge of the trial court. We have carefully reviewed the evidence, which seems overwhelmingly to support the proposition that appellant and more than three others on the night in question attempted to take a negro from the custody of certain officers- for the announced purpose of whipping him. This would be a violation of the terms of said article, and we are therefore compelled to hold the evidence sufficient to support the verdict.

An affirmance will be ordered.

On Motion for Rehearing.

Appellant urges a rehearing upon the proposition that the indictment herein contained two counts and that there was a general verdict of guilty, and it is insisted that it is impossible for him to tell of which count he was found guilty. In misdemeanor eases it is not held necessary, where the offense charged in each count is the same, it being evident that the efforts of the pleader was but to present two ways of committing the same offense, to specify upon which count the verdict was predicated. The rule seems to be in misdemeanor cases that the accused may be convicted under more than one count, if separate offenses be charged.

The motion for rehearing will be overruled. 
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