| Tex. Crim. App. | Dec 10, 1913
Lead Opinion
The appellant was convicted of forgery, and his penalty fixed at four years in the penitentiary. He filed a proper plea seeking to have the jury recommend that his sentence be suspended. The court properly submitted this question to the jury, and the jury refused to so recommend. He pleaded guilty. In his motion for new trial he alleged that he had agreed with the district attorney to plead guilty with the understanding from the district attorney that he should receive a sentence of two years, and it should be suspended. He further therein says that he understands that
Under tbe circumstances we must conclude that the testimony heard by tbe district judge on his motion for new trial did not sustain bis allegation, and that tbe action of tbe court in overruling bis motion is correct. So that tbe judgment will be affirmed.
Rehearing
On Motion for Rehearing.
After tbe original opinion affirming this case was handed down appellant made a motion for rehearing, and for a writ of certiora-ri to require the clerk to send up tbe statement of facts and other data which bad not been filed herein wben tbe original opinion was handed down. We granted the writ of certiorari, and tbe clerk has now sent up, and there has been filed herein, tbe said papers. By them and tbe record in connection therewith it is shown that tbe term of court at which this conviction was bad adjourned June 28, 1913. The court stenographer certifies that be was not called upon by appellant or bis attorneys to prepare the statement of facts of tbe trial, nor that beard on bis motion for a new trial, until September, 1913, and that be at once, on or about September 5, 1913, prepared both said statements of facts and delivered them to appellant’s attorneys. Tbe clerk shows that these papers were not banded to bim for filing or other action until “some time in tbe month of September or October.” And that upon inquiry of tbe district judge who tried tbe case be was told to put bis file mark thereon, as filed July 1,1913, which be did. What purports to be this original statement of facts beard on tbe trial of tbe case is neither agreed to by tbe attorneys for either side, nor is it in any way approved by tbe court. What purports to be a statement of facts beard on tbe motion for a new trial is signed by the district attorney for tbe state and approved by tbe district judge, but it is not signed, nor agreed to by appellant or bis attorneys. This, however, would make no difference, as tbe approval of tbe judge might be sufficient.
In no event can this purported statement of facts beard on tbe motion for new trial be considered by this court. In the first place, as shown above, it was not delivered to the clerk for filing until some time in September or October, 1913. Even tbe file mark placed on it by tbe clerk, of July 1,-1913, was after tbe adjournment of tbe court. It is unquestionably settled in this state that, in order to be considered at all by this court, such statement of facts beard on tbe motion for new trial must be filed during term time; and, unless so filed, this court cannot consider it. Black v. State, 41 Tex. Crim. 185" court="Tex. Crim. App." date_filed="1899-10-25" href="https://app.midpage.ai/document/black-v-state-3973089?utm_source=webapp" opinion_id="3973089">41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State, 52 Tex. Cr. R. 64, 106 S.W. 128" court="Tex. Crim. App." date_filed="1907-11-06" href="https://app.midpage.ai/document/reinhard-v-state-3962873?utm_source=webapp" opinion_id="3962873">106 S. W. 128; Jarrett v. State, 55 Tex. Crim. 551" court="Tex. Crim. App." date_filed="1909-01-20" href="https://app.midpage.ai/document/steel-v-state-3972508?utm_source=webapp" opinion_id="3972508">55 Tex. Cr. R. 551, 117 S.W. 833" court="Tex. Crim. App." date_filed="1909-03-03" href="https://app.midpage.ai/document/jarrett-v-state-3959009?utm_source=webapp" opinion_id="3959009">117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 617, 68 S.W. 512" court="Tex. Crim. App." date_filed="1902-04-30" href="https://app.midpage.ai/document/mikel-v-state-3913909?utm_source=webapp" opinion_id="3913909">68 S. W. 512; Williams v. State, 56 Tex. Crim. 225" court="Tex. Crim. App." date_filed="1909-05-19" href="https://app.midpage.ai/document/williams-v-state-3962261?utm_source=webapp" opinion_id="3962261">56 Tex. Cr. R. 225, 120 S. W. 421; Probest v. State, 60 Tex. Cr. R. 609, 133 S.W. 263" court="Tex. Crim. App." date_filed="1910-11-02" href="https://app.midpage.ai/document/probst-v-state-4886778?utm_source=webapp" opinion_id="4886778">133 S. W. 263; Tarleton v. State, 62 S. W. 748; Knight v. State, 64 Tex. Crim. 541" court="Tex. Crim. App." date_filed="1912-01-17" href="https://app.midpage.ai/document/knight-v-state-3919072?utm_source=webapp" opinion_id="3919072">64 Tex. Cr. R. 541, 144 S. W. 977; Bailey v. State, 144 S. W. 1005. So that, as tbe record is presented to us, we cannot review appellant’s contention that a new trial should have been granted so that his claimed agreement witb tbe district attorney that his sentence should be suspended could be enforced, even if tbe district attorney bad power and authority to make any such agreement.
Tbe motion is overruled.