252 S.W. 510 | Tex. Crim. App. | 1923
Lead Opinion
The caption to the tran script fails to show when court convened or adjourned. The Assistant Attorney General has filed a motion asking the dismissal of the appeal because of such omission. The motion must be sustained. See Lowrey v. State, 92 Tex. Cr. R. 311, 244 S. W. 147; Mandosa v. State, 88 Tex. Cr. R. 84, 225 S. W. 169; Davis v. State, 88 Tex. Cr. R. 183, 226 S. W. 532.
We find in the record a statement of facts signed by the attorneys and approved by the trial judge on March 4, 19?3, but it is nowhere made to appear that it was ever filed in the court below. In felony cases the original statement of facts must be forwarded to this court. There are also what purport to be several bills of exception in the record. None of them bear the approval of the trial judge, and the transcript does not show any of them to have been filed in the trial court. We call attention to these matters in order that any errors or omissions may be corrected if appellant -should desire the reinstatement of his appeal.
The appeal is dismissed.
Rehearing
On Motion for Rehearing.
In a motion for rehearing and‘as a part thereof appellant asks for a certiorari to compel the trial court to approve and order filed certain bills of exception which appear in the record without fiaving been filed'in the court below and without the approval of the trial judge. This court does not niake the law, but earnestly tries to ascertain if same has been followed in the trial of each case coming before it. In this case it appears that the district court of Gooke county convened on October 29, 1922, and under the statute could continue in session but eight weeks. This manifestly would require the court to adjourn not later than December 24th. Our law gives 30 days thereafter for the filing of bills of exception. An examination of the bills found in this record show that they were prepared and submitted to the trial court for approval as of date the 22d of February, 1923. This would necessarily, under the statute, make them too late, and, even if signed by the trial judge as of that date, and filed as of that date, this court would be powerless to consider them. Nor does this court by certiorari compel trial judges to approve bills of exception. It thus appearing that nothing could come from the .granting of the writ of certior.ari or the rehearing herein, appellant’s application for both will be denied.
