Clement v. StateClement v. State
- Reporters:
- , ,
- Before:
- Willson
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 сommitted in the fall of 1885, one year subsequent to the date of the commissiоn of the offense alleged in the indictment, and subsequent also to the datе of the presentment and filing of the indictment. This discrepancy between the indictment and the proof is the result, perhaps, of carelessness in thе preparation of the statement of facts; but even if it be a clеrical 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 indiсtment. (Code Crim. Proc., Art. 420; McCay v. The State, 3 Texas Ct. App., 399; Shoefercatеr v. The State, 5 Texas Ct. App., 207; Roblis v. The State, 5 Texas Ct. App., 346; Dovalino v. The Stаte, 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 еxception 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 tеn days after the trial, and were signed by him and filed before the adjournment of thе 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, аnd 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 suрported 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 requirеd by the statute that the party desiring the bill of exception shall reduce thе same to writing, and present it to the judge for his action during the term and within ten days аfter 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 *26to 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 оf exception are properly before this court, and are еntitled to be considered.
Defendant’s first bill of exception presents thе question of the admissibility of the declaration of defendant’s father in relаtion to the stolen coat. These declarations or statements wеre 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 genеral 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 refеrence 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.