30 S.W. 46 | Tex. Crim. App. | 1895
Lead Opinion
The appellant was tried in the District Court of Wichita County under an indictment charging him with murder. The jury trying the case found him guilty of murder in the second degree and assessed his punishment at twelve years in the penitentiary, and from the judgment and sentence in the case he prosecutes this appeal.
The question that presents itself at the threshold of the case is whether or not we can consider the statement of facts and bills of exception as a part of the record in this case. The record shows, that the court adjourned on July 2, 1894. The bills of exception appear to have been filed on June 25, 1894, and the statement of facts on July 2, 1894. The record shows that the following agreement was filed December 28, 1894, to wit: "The State of Texas Wichita County. We agree that the statement of facts and bills of exceptions in the case of The State v. Willie Spencer may be filed as of the term during which the same was tried." Said agreement was signed by counsel representing the State. The record shows an order, of date June 26th, allowing ten days after adjournment of the court within which to file a statement of facts in the case. Although the approval of the judge on the statement of facts and bills of exception is without any date, and the filing of same (both the exceptions and statement of facts) contains a date as of the term, yet to our minds the above agreement makes it evident that neither the statement of facts nor bills of exceptions had been filed prior to the 28th of December, 1894, and that they were purposely antedated, so as to appear to have been filed during the term. The law and the rules of this court require the bills *246 of exceptions to be filed during the term, and the statement of facts can only be filed after the term when the court has made an express order allowing the ten days; and the method pursued in this case only shows an attempt to evade, by an agreement not authorized by law, a long-established rule of practice, the wisdom of which has been demonstrated by experience. Such a course of procedure can not be permitted by this court, and the bills of exception and statement of facts which appear in the record will not be considered by us.
The only question remaining for consideration in this case is that raised by the motion for a new trial in regard to the taking by the jury into the room of the clothes of the deceased, which had been introduced in evidence in the case. The motion was supplemented by the affidavit of one of the jurors and also of defendant's counsel, and showed, that on application of the jury, in the absence of defendant and his counsel, the clothing which had been introduced in evidence was authorized by the court to be sent to them. It is not shown that the clothing was used by the jury in any other manner than as warranted by the evidence, or that any new facts in connection therewith were discovered and discussed by the jury, and no prejudice is shown to have resulted to the defendant by the use of the clothing in the jury room. In McDonald v. The State, 15 Texas Criminal Appeals, 499, it appears that the jury were in the room where the homicide which they were trying occurred, and examined the bullet holes in the walls. Judge Wilson, in passing upon the question, said: "It is not made to appear, however, nor do we think that it was at all probable that such was the case, that the jury were in the least degree influenced in their verdict by these matters." So far as the Bouldin case, 8 Texas Criminal Appeals, 332, is concerned, which appears to contravene the decision in the McDonald case, the same has heretofore been overruled in Bell v. The State, 32 Texas Criminal Reports, 440. See also Powell v. The State, 61 Mississippi, 319. The motion for new trial showed, as before stated, that the clothing which was permitted by the court to be sent to the jury room had previously been introduced in evidence, and was used before the jury, in connection with the shot holes in the same, in the argument of the counsel; and although the defendant had full opportunity to show all the facts that occurred in the jury room in connection with the inspection and use of the clothing by them, it is not shown by the affidavit of any juror that said clothing was used by them in any different manner than accorded with the evidence adduced before them in connection with said clothing, nor is any new fact shown to have been discovered by them. In our opinion, the appellant must show affirmatively that he probably suffered some prejudice by the use of this testimony by the jury in the jury room, before he can be heard to complain; and none having been shown in this case, the judgment of the lower court is affirmed.
Affirmed.
Judges all present and concurring. *247
Addendum
This case was decided at the Dallas Term of this court, and now comes before us on motion for rehearing. In appellant's motion for rehearing he contends, that the file mark on the statement of facts and bills of exception, which show that these papers were filed during the term of the District Court, must govern, and that the court can not look to the written agreement filed on the 28th day of December, 1894 — some six months after the court adjourned — to aid it in determining whether the statement of facts and bills of exception were filed during the term. The agreement in question was filed on the 28th of December, 1894, and was a stipulation on the part of the State's counsel to allow the statement of facts and bills of exception to be made up and filed as of the term. Appellant contends, that this agree-ment constitutes no part of the record in the case, and should not have been filed. By Rule 47 for the government of the District Court it is provided, that "no agreement between attorneys or parties, touching any suit pending, will be enforced unless it be in writing, signed, and filed with the papers as part of the record in the case." While this agreement was such a one as could not be enforced, yet it seems to have been reduced to writing, in accordance with the provisions of this rule, appears to have been acted, upon by the parties, and approved by the court; and appellant even now insists, that having the approval of the court, and relying on same, it is such an agreement as this court ought to respect and enforce. Such is not our view. But conceding that the same was improperly filed as part of the record of the case, it furnished this court, when the case was originally before us, with a suggestion that said statement of facts had not been filed within the ten days allowed by law after the adjournment of the court; and the court, acting upon this, in connection with other evidence, struck out said statement of facts, and appellant now, on motion for a rehearing, instead of filing affidavits or presenting other evidence showing that the statement of facts had been filed within the time allowed by law, has filed a motion and affidavits, by which he gravely insists, in the first place, that this court can not look beyond the file mark of the clerk on the statement of facts to ascertain whether or not the same was filed on the day it purported to be.
In answer to this it is sufficient to say, that when an issue of this character is raised we do not believe that the powers of this court are so circumscribed as not to authorize it to take proper steps to determine the truth of the issue thus made. If it were otherwise, the law on the subject requiring bills of exception to be filed within the term, and statement of facts to be filed within the term, or ten days beyond the term, under an order of court, would be a dead letter, as its provisions could be so easily evaded by the action and connivance of the officers of the lower court; and we hold that, whenever the question as to the filing of bills of exception and statement of facts is properly made, *248 this court is not without power to inquire into the truth or falsity of such an issue. In the second place, appellant, instead of filing affidavits showing that the statement of facts was filed on the date when it purported to be, files an affidavit of one of the counsel, admitting that such was not the case, but insisting that, having made an agreement within the term to prepare and file said statement beyond the time allowed by law, and the same having received the approval of the judge below, this court should respect an agreement so made, and should regard the statement of facts as filed within the time allowed by law. Such we do not understand to be the rule of law on this subject. Under an order of the court, ten days beyond the term is the extreme limit allowed by law within which to prepare and file a statement of facts in any given case. Such was considered by the Legislature as ample time, even in extreme cases, and we know of no rule of law by which a judge below is authorized to increase the time. No doubt it was considered by the Legislature as a wise regulation that the statement of facts should be completed as nearly as possible contemporaneous with the trial of the case, while the memory of counsel and the court was fresh as to the facts thereof, and, in practice, unquestionably the wisdom of this regulation appeals to every lawyer who has had occasion to prepare a case for appeal. It goes without saying, that a statement of facts is more easily and accurately prepared at or near after the trial than beyond that, and as time elapses, the difficulty of agreeing upon the facts is enhanced; and this court will not lend its aid in ignoring the plain letter of the law, nor will it approve of any connivance on the part of the lower courts in a departure from the statute on this subject. Because it appears to the court that the statement of facts in this case was not filed within the time allowed by law, this court will adhere to its former opinion, and will refuse to consider the same as a part of the record in this case.
The motion for a rehearing is accordingly overruled.
Motion overruled.
Judges all present and concurring.