Lead Opinion
—Mоtion is made by the Assistant Attorney-General to strike out the statement of facts and bills of *35 exception. An inspection of the record discloses that the County Court adjourned on the 21st of August, 1909. The statement of faсts has his endorsement on same: “Filed September, 1909,” and has no approval of the county judge. Bills of еxception Nos. 1, 2 and 3 are approved by the county judge, but are not filed, at least the record does not show any file mark upon them, and bill of exceptions No. 4 has the same endorsement as thе statement of facts, to wit: “Filed September, 1909.” As these matters are presented we are of oрinion the motion of the Assistant Attorney-General is well taken. It ought to be shown that the statement of facts wаs filed within thirty days from the adjournment of the court. This occurred on the 21st day of August, leaving about eight or nine days in that month, and thirty days in September. If the filing of these papers occurred after the expiration of thirty days, it would be too late, and only two of the papers, one bill of exceptions and the statemеnt of facts, show to have been filed at all, and the statement of facts is not approved. Thesе being eliminated, there is no question presented for review by this court, therefore, the judgment is affirmed.
Affirmed.
Addendum
ON REHEARING.
January 18, 1911.
—At a fоrmer day of this term the judgment herein was affirmed. The statement of facts and bills of exception as then рresented by the record were in such condition they could not be considered for want of proрer filing. Since the affirmance appellant has filed a motion for rehearing accompanied by the affidavit of his attorney, Mr. Neal, showing that he presented the bills of exception and statemеnt of facts to the trial judge on the 18th day after the term adjourned. The State does not controvert this affidavit and showing made therein. This would bring him clearly within the statute which allows thirty days in which to secure his statement of fаcts and bills of exception. The court approved the bills in ample time, and handed them to the сlerk before the expiration of the thirty days. The clerk neglected, as shown by the record, to place the date of filing on them, but does file them “September, 1909.” The court adjourned on the 21st of August, 1909. The affidavit of the attorney shows that they were in fact handed to the clerk and placed among the filed papers within the thirty days allowed by law with the file mark as above indicated without specifying the day of filing. The statement of facts has the same file mark as the bills of exception, to wit: “September, 1909.” That documеnt is agreed to by the attorneys, and was so agreed to at the time it was handed the judge, who agreed tо approve the same, but it seems from the record and the affidavit that he failed to do so. The statement of facts was left with the judge and the attorney interviewed the judge on several occasiоns after the document was
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handed, to him urging his approval. He agreed to approve the samе, but so far as the affidavit is concerned as well as the record failed to do so. Under our statute as construed by the decisions, this would entitle appellant to a reversal of the judgment in order that he might have an approved statement of facts upon which his case may be reviewed by this court. It was nо fault of his that the statement of facts was not approved. We are led to believe that it was аn omission on the part of the judge. There being diligence on the part of appellant and his counsel to obtain a proper statement of facts, he is entitled to a reversal because hе did not obtain the same. Among the later cases upon this question are those of Shaffer v. State, both reported in
We have, however, looked into the bills of exception, thinking perhaps as they werе filed, and under the affidavit of the attorney, within time, and having been approved by the judge, the matters therеin contained might be considered. If they could not be considered this would be an additional reason for reversing the judgment in order that he might have the matters stated in the bills revised or reviewed. If considered, two оf the bills present errors which are clearly reversible. It is unnecessary to go into a detailed statеment of these matters. It is sufficient to state that the State used the wife of appellant against him as а State’s witness. Objection was urged to testimony elicited from her, which was overruled, and she testifed. The „cоnviction of appellant was for adultery. It has been settled in this State by a long unbroken line of decisions that in adultery the husband or wife of the party charged is not a competent witness against him or her, as the case may be. For collation of decisions see White’s Annotated Penal Code, section 552. Under our statute the wife is not permitted to testify against the husband except in a criminal prosecution fоr an offense committed against her by her husband. See White’s Annotated Code of Criminal Procedure, art. 755. See also Brock v. State,
So, whether we consider the statement of facts or bills of exception or not, this judgment should be reversed. The motion for rehearing is granted, the affirmance is set aside, and the judgment is now reversed and the cause remanded.
Reversed and remanded.