Lead Opinion
Appellant was tried in the District Court of Navarro County, beginning on the 30th day of September, 1912, and ending on the 21st day of December, 1912, during which term the motion for a new trial was overruled. The transcript was not filed in this court until the 15th day of December, 1913, about a year from the adjournment of the court of the term at which he was tried, and more than a year from the date on which his trial occurred, the record showing that he was tried November 21, 1912. The law requires that those records be filed in this court within ninety days from the adjournment of court, or if the term lasts more than eight weeks, within ninety days from the overruling of the motion for a new trial. The failure of the clerks to comply with this law has caused much complaint to be made about "delay in the disposition of criminal cases." A species of negligence had grown up in regard to forwarding transcripts, and in June of last year we had notices printed and mailed to each clerk that we would no longer countenance such negligence on their part, but would expect and require a compliance with the law by them. A letter was received from the clerk of the District Court of Navarro County, he writing in July that he had been unable to complete the record in this case because the bills of exception had not been filed, and that he would forward same as soon as he could get the bills. He was notified to send a transcript of the proceedings as was then properly filed and of the record in his office, but he did not do so. In December, 1913, the court's attention being called to the fact that a year had elapsed and still the record not forwarded to this court, we ordered citation to issue commanding him to file the transcript in this case, and appear and show cause why he had not filed same within the time required by law. When the transcript was filed in this court on the 16th day of last December, the bills of exception showed to have been filed in the trial court on February 14, 1913, ten months prior to the time the record was filed in this court. We gave the clerk an opportunity to explain this matter, and the contradiction between these file marks and his letter written in July of last year. He was sworn and testified that the bills of exception were not in fact filed in his office until the 10th day of December, 1913, more than a year after the trial of the case, but under the direction of the judge of the trial court he had ante-dated their filing, and placed the file mark as of date February 14th by direction of the trial judge. It has been frequently held by this court that the trial judge or any other person has no authority or power to authorize the ante-dating of bills of exception, and statement of facts. In the case of Bryant v. State, 35 Tex.Crim. Rep., in an opinion by Judge Hurt, it was held: "This court, *Page 225 on appeal, will, whenever necessary, go behind the file marks appearing upon a statement of facts or bills of exception, in order to ascertain and determine whether the said statement of facts and bills of exception were in fact legally filed, following Spencer v. State, 34 Tex.Crim. Rep.. And what the district judge or district attorney may have said or done, with reference to filing the statement of facts back within the time allowed by law, can not avail to exonerate the appellant from the use of diligence before expiration of the time allowed by law." This has always been the rule of law, and it next became necessary to determine whether or not it was the fault of counsel for the appellant that these papers had not been filed properly. The testimony of the clerk shows clearly that they had not been filed within the time allowed by law — in fact not filed within twelve months after the trial. Mr. Johnson, of counsel for the State, then testified that these bills of exception were not presented to him nor the trial judge until in May, 1913, for their consideration and approval, whereas at the furthest appellant was not allowed longer time than March 18, 1913, in which to prepare them, secure their approval, and have them filed. Under such circumstances the bills of exception under the law can not be considered.
As to the statement of facts, while it shows to have been filed on January 2, 1913, yet the certificate of the stenographer shows it was not made out and certified to by him until March 7, 1913, — more than two months after the filing date. Of course, it was impossible for the statement of facts to have been filed before it was made out by the stenographer. But it was certified to on March 7th, this allowed time to present it to the district attorney and trial judge and have it filed within the time allowed by law — ninety days — or March 18th, yet the clerk testifies on oath that same was not in fact filed within the ninety days, and Mr. Johnson says it was not presented to him within that time for his consideration, nor presented to the court for approval until after he had considered same and agreed thereto. So it too bears a false date of filing, and was not in fact filed within the time permitted by law, and must be stricken from the record. And in the absence of a statement of facts and bills of exception there is no ground in the motion for a new trial we can review.
There is a ground in the motion alleging the incompetency of one of the jurors, which fact was unknown to appellant until after the trial of the case, which ground is supported by the affidavit of appellant and two of his counsel. However, in overruling the motion for a new trial the court states he heard and considered the evidence on this ground of the motion, and overrules it, and with no evidence before us must conclude that the court did not abuse his discretion in finding that the juror was a qualified juror at the time of this trial. In the case of Jordan v. State,
It would perhaps be proper for us to state that the prosecuting officers and trial judges are not antagonistic to the bills of exception and statement of facts being considered — in fact the trial judge ordered them filed back as of date within the time. But this action was unauthorized by law, — in strict violation of it, and we hope no other judge will take such action. If those who are to administer the law, do not obey its mandates but connive at an evasion of it, in what position are they then to see that others who violate the law are made to suffer for their misdeeds? In this instance this prisoner has been compelled to remain in jail for twelve months, when, if he was entitled to have his case reversed, he ought to have been placed in position to have gained his liberty some nine months ago by giving bond. The county has been compelled to support him for twelve months, when, if his case should have been affirmed, he ought to have been in the penitentiary for the past nine months, earning his own living by labor instead of lying idle in jail, being fed and clothed by the people of Navarro County. Again, after this long lapse of time, had it been necessary to reverse the case, the chances are that many of the witnesses would now be unobtainable, or if obtainable, at a much greater cost to the State. These and other considerations, and the fact that the law is thus written should be sufficient for all officials to see that the law is complied with, and in this *Page 227 way, and this way only, can we hope to prevent delay in criminal cases. If you can take twelve months to file bills of exception and the transcript in this court, then you can take two years, or three years, and if we once go beyond the time fixed by law, then there is no end to the time that may be taken.
We have inquired into this delay of filing the bills of exception and statement of facts closely, for if this delay had been the fault of the officers representing the State, we had intended to reverse the case, and let this be a lesson to prosecuting attorneys and officials. But as the evidence shows that the statement of facts and bills of exception were not prepared and presented to the court in the time allowed by law, appellant must suffer the consequences of his own negligence.
Another matter: we had the clerk before us. He shows that this is his first term of office, and he was acting under the instructions of the trial judge. We thought at first of assessing against him a heavy penalty, because the authority of the trial judge would not authorize him to ignore the law, but taking everything into consideration, and his manifest sincerity and frankness in stating the real facts on examination, we have concluded to assess against him the cost of issuance and service of process in bringing him before this court. Upon the payment of the costs incident thereto he will be discharged.
While under the circumstances it was not incumbent upon us to read this record, yet we have done so, for we dislike to see an injustice done any man, even though by his negligence he was not entitled to have his case reviewed. After reading it, we are of the opinion that the evidence would not only justify the verdict herein rendered, but would have sustained a verdict of murder in the first degree, with the highest penalty known to the law assessed against him. The record reeks with facts tending strongly to show a wilful premeditated killing, while his victim was plowing in his field. That appellant went there for the purpose of slaying him, and did so, and he ought to feel thankful to his counsel for their able conduct of the case, and to the jury for the mercy shown in their verdict.
The judgment is affirmed.
Affirmed.
Addendum
Appellant has filed a lengthy motion for rehearing in which he earnestly insists that his bills of exception should be considered. While he admits they were not filed for more than a year after the trial of the case, yet he says he prepared them in February prior thereto and notified the prosecuting officers that they were ready for their inspection. He then admits he held them until in May, when he for the first time delivered them to the trial judge and requested him to act thereon. This was about six months after the trial. In Riojas v. State,
Again he says the statement of facts was made out on March 7th and sent to him, and a duplicate was sent to the district clerk, which was received on March 12th, but it is not contended that either had been agreed to by counsel or approved by the judge at that time, and it is manifest by the record and papers before us that the statement of facts was not presented to the judge for his approval until more than one hundred days had elapsed after the adjournment of court for the term. Had appellant been diligent when he received the statement of facts on March 12th, and secured an agreement from the prosecuting officers that it was correct, or if that officer declined to pass on it and then agree to it, had then delivered a copy of the statement of facts to the judge with the request that he approve same, or prepare a statement and file it, it could have been done in the time required by law, and he would then have done what the law required him to do. But he did not do this, but waited until after the time had elapsed in which he could file a statement of facts, and then presented it to the judge for his signature. Counsel can not by agreement abrogate the law, and we are not authorized to do so. No good reason is assigned, except that counsel had been busy. Counsel say that in the cases of S.P. Ward and Louis Walker, appealed from Navarro County, that the statement of facts and bills of *Page 229 exception were antedated and yet they were considered, and because we considered the record in those cases we should do so in this case. Those two and a number of other cases from other counties, in which the filing of records in this court were unnecessarily delayed, caused us at the termination of the last term of this court, in last June, to make and enter an order stating that such negligence would no longer be tolerated. This notice was published in the daily press of this State, and the clerks of all the courts were promptly notified, and the clerk of the court in this case was notified in July of last year that this record must be forwarded, and counsel were notified of such action as the sworn testimony in this record discloses, and yet no attention was paid to the matter until some six months thereafter we notified the clerk that he would be fined if this record was not filed in this court, when the bills of exception were hurriedly filed and dated back. We are but enforcing the Code of Criminal Procedure as written, and we gave notice simply that all might know that the negligence that had grown up would no longer be tolerated, and yet counsel say although, after receiving notice that this court had entered such an order, they still ignored the law, because it had been done before the notice had been given, we should follow the policy of ignoring the law and let bills of exception and statement of facts be filed whenever it is convenient for it to be done, regardless of the law. The fact that in the Ward and Walker cases the statement of facts and bills of exception, if it was done, had been antedated, was not called to our attention, and it appeared that it was solely the negligence of the clerk that the records had not been forwarded to this court at the proper time, and for this reason they were considered. Had it been made to appear, as in this case, that they had been dated back, they would have been stricken out, as they are stricken out in this case.
The motion for rehearing is overruled.
Overruled.