90 S.W. 632 | Tex. Crim. App. | 1905
Lead Opinion
The Assistant Attorney-General has filed a motion to dismiss the appeal, on the ground that the recognizance does not state the amount of the punishment assessed against appellant, as required by article 887, Code Criminal Procedure. An examination of the record, shows that the motion is well taken. May v. State, 40 Tex.Crim. Rep.. The appeal is accordingly dismissed.
Dismissed.
Addendum
The appellant has filed a motion to permit him to file a new recognizance, in lieu of the one in the transcript held defective at a former day of this term, because it did not comply with article 887, Code Criminal Procedure. This motion of appellant is granted, and the rules with reference to filing same will be found set out in Ace Burton v. State, decided this day.
Motion granted.
Henderson, Judge, absent.
Addendum
The appeal was dismissed at a former day of this term, because the recognizance was defective; and the appellant having filed a new recognizance in this court under the rules prescribed by this court as provided by the Acts of the 29th Legislature, page 224, the cause is reinstated upon the docket, and is now before us for decision.
The State has filed a motion to strike out the statement of facts and bills of exception, upon the following showing: that the bills of exception were approved on April 14, 1905, and were filed February 2 and 14, 1905 — the term of court adjourned on January 28, 1905, and on which date the motion for new trial was overruled. On this showing the bills of exception are stricken out, inasmuch as the law requires that the approval of the bills of exception cannot be extended longer than twenty days after the adjournment of the term. This record shows, as stated, that the bills were approved on April 14th, and hence could not have been properly filed on February 2, 1905. The State further shows that the statement of facts was approved by the court on March 18, and filed February 14, 1905, that the statement was not approved within the twenty days after adjournment. Appellant resists the motion, and makes the following showing by affidavit; that said statement of facts was prepared from the stenographer's report of the case as soon as it could be reasonably done, after the trial on January 28th. That said statement and bills were duly prepared by attorney for appellant between the 5th and 10th of February, 1905, and duly presented to the county attorney for his approval on the 10th of February, 1905, but were not examined or approved on said date, as alleged by him for want of time; that counsel for defendant had to leave *537 home on the 11th of February, and placed said statement of facts and bills in the possession of his stenographer, requesting him to present them to the county attorney for his approval, and then present the same to the county judge for his approval, and then file the same with the county clerk before the 17th of February, 1905, at which time the twenty days would expire. The stenographer did, as directed, except that the judge did not approve the same within the twenty days, and appellant's counsel did not learn of his failure to do so, until after the time expired; that the statement of facts is correct, etc. We hold that this statement does not authorize this court to consider either the bills of exception or statement of facts. The lack of knowledge on the part of the stenographer of what should be done in the premises, would not show diligence on the part of appellant's counsel. The failure of appellant to have the papers approved within the proper time and filed, does not authorize this court to consider the same. See this matter discussed in Walker v. State, this day decided. In the absence of the bills of exception and statement of facts, we see no error authorizing a reversal. The judgment is affirmed.
Affirmed.