Archer v. State

Jun 26, 1914

No. 3199.

Versions:168 S.W. 857

74 Tex. Crim. 524

1914 Tex. Crim. App. LEXIS 366

HABPEB, Judge.

Appellant was prosecuted and convicted of mur *525 dеr, and his punishment assessed at ten years ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍confinement in the State penitentiary.

Appellant having nо counsel, the court appointed Messrs. E. Hawes and S. C. Cap'pell to represent him, and they did so on the trial of the case. The motion for new ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍trial was overruled on May 27th, and the court adjourned on May 30th. There is no statement of facts in the record, and appellant, relying on Burden v. State, 70 Texas Crim. Rep., 349, 156 S. W. Rep., 1196, аsks us to reverse the case because he has been deprived of a statement of facts, but he hardly brings himself within the rule there announced. It is true that twelve days only after court adjourned appellant files an affidavit with the clerk of the court, stating that immediately after the motion for new trial had been overruled he called the court’s attention to the fact that under the stenographers’ Act of 1911, counsel for defendant was entitled to a transcript of the stenographer’s notes, in order to enable them to make up a statement of facts, and the court stated that he was fаmiliar with the law in that respect. But it nowhere appears in the record that he filed any motion оr made any effort to get- the court to require the stenographer to make out transcript, оr that he ever called on the stenographer to furnish him the notes thereafter, or that the stenоgrapher refused to do so. But instead by the record it is apparent that within twelve days after cоurt adjourned appellant’s counsel filed with the clerk the following request: “How comes the defendant, Paul Archer, and respectfully requests and instructs the district clerk of Wharton County, Texas, to immediately prepare and forward to the Court of Criminal Appeals at Austin, Texas, a complete trаnscript of the record in its present condition, in the above styled and numbered case. Hereby expressly waiving any further time in which to file bills of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍exceptions or statement of facts.” Thus it is seen that aрpellant not only did not call on the stenographer for a transcript, nor seek to have the court to compel him to furnish his notes of the testimony, but instead thereof before the stenograрher had a reasonable time in which to make out a transcript, he files a request with the clerk of the court to at once forward the record to this court, waiving time in which to file a statement of facts, when he had sixty-eight days in which it could be filed. Instead of appellant making an earnest effort to get a statement of facts as was done in the Burden case, supra, it seems he was making a studious effort to keep one from being furnished him by demanding the record be forwarded to this court without a stаtement of facts within twelve days after court adjourned. Ho officer seems to have neglected his duty in the premises, but appellant in his zeal seeks to have thé case forwarded to this court before the stenographer has a reasonable time in which to make out a transcript of his nоtes, and without even calling on the stenographer for the evidence he of his own accord waives time and demands that the record be sent to this court without a statement of facts. Hnder such circumstances he is not entitled to have his case reversed, but in order to secure a reversal because of a want of statement of facts, there must be shown an earnest, sincere effоrt on the part *526 of appellant and his counsel, and the reason of his failure to secure а statement ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of facts was on account of negligence of those other than himself.

There is but оne bill of exceptions in the record. It complains that the court erred in permitting Sevan Norris, to testify: “Paul Archer was sitting.on the gallery picking in the floor with his knife. I didn’t notice what sort of knife it was. Paul told me thаt he was going to get some meat with this knife. He got up from the gallery and sat up there on the bench. Hе sat on the bench a good while, and then left and went down the road. When I saw him he was going towards the rаilroad. I never saw anybody down the road. After Paul had gone down the road, first I heard some talking, and thеn I heard two licks. Paul had not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍come back when we left.” This was a case, as shown by the charge of the court, depending wholly on circumstantial evidence. The record discloses that deceased was found the next morning “down the road” the way Paul went, and that he was killed by being cut to death. This being а case depending on circumstantial evidence, there was no error- in admitting the testimony, for in a case of that character it has been held that the mind seeks to explore every pоssible source from which any light, however feeble, may be derived. Noftsinger v. State, 7 Texas Crim. App., 301; Black v. State, 1 Texas Crim. App., 368; Cooper v. State, 19 Texas, 449.

There is no other bill of exceptions in the recоrd, and in the absence of a statement of facts there is no other question presented in the motion for new trial we can review.

The judgment is affirmed.

Affirmed.