Lead Opinion
This is аn appeal from a conviction for an assault with intent to murder.
By law the term of court at which he was convicted could continue in session for more than eight weeks, and, as a matter of fact, as the record shоws, was in session full three months. The court overruled his motion for a new trial on Sеptember 2, 1915, and then sentenced him, at which time he gave notice of appeal to this court ; all of which was then duly entered. The statement оf facts and bills of exception herein were not filed until more than ninety dаys after that time. Hence, the Assistant Attorney General’s motion to strike out and not consider the bills of exceptions and statement of facts must be sustаined. Demarco v. State,
The judgment is, therefore, affirmed.
Affirmed.
Addendum
ON REHEARING.
February 2, 1916.
Appellant’s attorney files his affidavit accompanying his motion for rehearing, seeking to show diligencе in having filed his statement of facts and bills of exception within the time .allowеd by law and the order of the court.
This affidavit in substance shows that Judge Oxford held one week of the term of Judge Swayne’s court in Fort Worth, at which time this case was tried. It further shows that Judge Oxford left Fort Worth and went to his home immediately after the overruling of his motion for a new trial and his notice of appeаl, etc. That, within ten days thereafter, he prepared his three bills of exсeption, and, within a very short time thereafter, ordered and requested thе official stenographer to make out a statement of facts. The affidavit does not state when the statement of facts was made out. The statement of facts with the record contains not quite thirty-six pages in typеwriting. Of course, we know, and everyone knows, that such a statement of faсts could have been made out within a very few days.
*638 The affidavit further shows that аppellant awaited the return of Judge Swayne, showing that he was sick, out of the State and absent-for several weeks thereafter. It seems from thе affidavit that appellant’s attorneys depended on getting his bills of exceptions and statement of facts approved by Judge Swayne. That, even after waiting these several weeks for Judge Swayne’s return, he did not see him to> get him to pass on these documents for some time after his return.
Under the law Judge Swayne, not having tried the ease, could have approved neither the statement of facts nor bills of exception, under both the stаtute and the decisions. Richardson v. State,
The affidavit further shows that it was not until some time after Judge Swayne’s return, the time not definitely stated, that he even sаw Judge Swayne and was told by him that as he had not tried the case he preferred that Judge Oxford act on these papers, or that he attemptеd to find Judge Oxford or get the papers to him.
The whole affidavit shows such a lack of diligence that, under no authority can we consider the statement of facts or bills of exception. There are a great many deсisions of this court holding that, under such circumstances as shown herein, this court сan not, and will not, consider either the statement' of facts or bills of exception. We cite only a comparatively few of them. Turner v. Statе, 22 Texas Crim. App., 42; Henderson v. State, 20 Texas Crim. App., 304; Bryant v. State,
However, we will state that we have examined each of appellant’s three bills of exceptions and have read carefully the statement of facts. The evidence cleаrly establishes appellant’s guilt if we could consider the statement of facts. Neither of his bills of exceptions would present any error authorizing a reversal if we could consider them, so that, in no event, could this court have done otherwise than affirm this case.
The motion is overruled.
Overruled.