154 S.W. 557 | Tex. Crim. App. | 1913
Appellant was convicted of robbery, and his punishment assessed at five years confinement in the penitentiary.
There is a motion made to strike out the statement of facts because not signed by appellant's counsel, although signed by the county attorney, and approved by the district judges. There are some decisions so holding, but is this a correct construction of the provisions *401
of our statute? Article 824 of the Code of Criminal Procedure provides that if a case is appealed, a statement of facts may be drawn up and certified and placed in the record as in civil cases. Our Civil Code, Article 1379, provides that if the parties agree upon a statement of facts, they shall sign the same, and it then shall be submitted to the judge, who shall, if he finds it correct, approve and sign it, and the same shall be filed with the clerk; and the next succeeding article (1380 provides if the parties do not agree upon a statement of facts, or if the judge refuses to approve one that is agreed to, the parties may submit their respective statements to the judge, who shall from his own knowledge make out and sign and file with the clerk a correct statement of facts proven on the trial, and such statement shall constitute part of the record.) In the case of Kelso v. Townsend,
In this case the statement of facts is signed by the county attorney, and the same is approved by the judge trying the case, he stating "that the statement of facts is correct and he approves the same, and orders it filed as a part of the record in the cause." It is filed with the clerk in the time permitted by law, and we see no good reason why it should not be considered.
The bills of exception, however, we cannot consider. The law requires of one and makes it his duty to prepare and file within the time allowed his bills of exception. If he does not do so, it is through his neglect, and under such circumstances he has no one to blame but himself. The bills of exception not having been presented, approved and filed within the time allowed by law, the motion is sustained as to the bills of exception, and they are stricken from the record. (Blackwell v. State,
The court did not err in failing to charge on circumstantial evidence, as the witnesses Baird and Fomby both swear positively as to the identity of defendant as the person who robbed Baird. The acts and conduct of one when he is arrested is always admissible in evidence, therefore, the court did not err in admitting this testimony, nor in failing to limit the effect of it in his charge. It was also permissible to show that Fomby was robbed at the same time and place as Baird, and no charge in relation thereto was called for. The evidence shows that Baird and Fomby were held up by two men whom they identify as appellant and Bruce Willis, one of them holding a pistol on Baird and Fomby while the other went through them and took their money, watch, etc. The defendant testified, denying any knowledge of the robbery, and testified that he was at another and different place. The court instructed the jury fully as to this defense, charging them:
"Among other defenses set up by the defendant is what is known as an alibi, that is, that if the offense was committed, as alleged, that the defendant was, at the time of the commission thereof, at another and different place from that at which such offense was committed, and therefore was not and could not have been the person who committed the same.
"Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where offense was committed at the time of the commission thereof, you will find him not guilty. *403
"If you find and believe that some person or persons at or about the time and place stated in the indictment, did commit the crime of robbery of Joe Baird, but you further find and believe that the parties who did so were Bruce Willis and some other party, then you will find the defendant not guilty; and if you have a reasonable doubt as to whether this is true you will give the defendant the benefit of the doubt and acquit him. If you find that said robbery was committed but was committed by any other two persons than the defendont, the defendant not being present at the time, acting together as principal with the person who so committed said robbery, then you will find the defendant not guilty; and if you have a reasonable doubt as to whether this is true you will give the defendant the benefit of such reasonable doubt and acquit him."
In the motion for a new trial defendant alleges that the jury discussed on their retirement the prevalence and frequency of robbery in the city of Dallas, and alleges that this discussion was detrimental to defendant. This ground of the motion is not supported by the affidavit of any juror nor any person who purports to know that such matters were discussed by the jury, therefore, it presents no error.
The evidence offered in behalf of the State supports the verdict, and the judgment is affirmed.
Affirmed.