Clement v. State

22 Tex. Ct. App. 23 | Tex. App. | 1886

Willson, Judge.

The indictment upon which this conviction is based was presented in court and filed April 4, 1885, and alleges the offense to have been committed on ór about November 20, 1884. It was proved on the trial, as shown by the statement of facts before us, that the offense of which the defendant stands convicted was committed in the fall of 1885, one year subsequent to the date of the commission of the offense alleged in the indictment, and subsequent also to the date of the presentment and filing of the indictment. This discrepancy between the indictment and the proof is the result, perhaps, of carelessness in the preparation of the statement of facts; but even if it be a clerical mistake merely, it is beyond the power of this court to correct or avoid it. It must not only be alleged in the indictment, but it must be proved that the offense charged was committed anterior to the presentment of the indictment. (Code Crim. Proc., Art. 420; McCay v. The State, 3 Texas Ct. App., 399; Shoefercater v. The State, 5 Texas Ct. App., 207; Roblis v. The State, 5 Texas Ct. App., 346; Dovalino v. The State, 14 Texas Ct. App., 324.) Because of this error in the conviction, the judgment must be reversed and the cause remanded.

There are several bills of exception in the record which were not filed within ten days after the conclusion of the trial, but which were presented to the judge for his action within ten days after the trial, and were signed by him and filed before the adjournment of the court. It is insisted by the Assistant Attorney General that these bills cannot be considered because not filed within ten days after the conclusion of the trial, and in support of his position he cites Cummins v. The State, 12 Texas Court of Appeals, 121; Harrison v. the State, 16 Texas Court of Appeals, 325, and Morris v. The State, 17 Texas Court of Appeals, 660. Upon an examination of those cases, we find that the position of the Assistant Attorney General is apparently supported by the opinions in Cummins v. The State and Morris v. The State, but not by the opinion in Harrison v. The State. We think the rule as stated in Cummins v. The State and Morris v. The State, supra, is not warranted by the statute, and is therefore incorrect.

It is only required by the statute that the party desiring the bill of exception shall reduce the same to writing, and present it to the judge for his action during the term and within ten days after the conclusion of the trial. (Rev. Stats., Art. 1363.) When the party has presented the bill to the judge, he has performed all that the statute requires of him. He is not required to have it filed. It is made the duty of the judge to file the same with the clerk during the term. (Rev. Stats., Art. 1364.) In the case before us the bills of exception were presented to the judge within ten days after the conclusion of the trial, but were not filed within said ten days. They were filed, however, during the term. We hold that the bills of exception are properly before this court, and are entitled to be considered.

Opinion delivered October 16, 1886.

Defendant’s first bill of exception presents the question of the admissibility of the declaration of defendant’s father in relation to the stolen coat. These declarations or statements were made in the presence and hearing of the defendant, and were clearly admissible as original testimony, as much so as if they had been made by the defendant himself.

Defendant’s second bill of exception is a general one to the entire charge of the court. We have examined the charge carefully, and find no error in it. It fully and correctly presents to the jury all the law of the case, and is not, in our opinion, when viewed with reference to the facts, objectionable in any respect.

We have found no error in the conviction except the proof of the time of the commission of the offense, and for this error alone, the judgment is reversed and the cause is remanded.

Reversed and remanded.