Ellis v. State

Citation213 S.W. 264
Decision Date06 November 1918
Docket Number(No. 5169.)
PartiesELLIS v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from District Court, Potter County; Hugh L. Umphres, Judge.

Ike Ellis was convicted of murder, and appeals. Affirmed.

M. Cammack, of Amarillo, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

This appeal is from a conviction for the offense of murder, with 15 years in the penitentiary assessed as a punishment.

There is no statement of facts with the record. However, there is with the papers an application for a mandamus, timely filed, asking this court to compel the official court reporter, J. E. McGinnis, who was the stenographic reporter and as such took down the testimony upon the trial, to make out a statement of all evidence introduced as required by the statute. In addition to the petition for the mandamus itself, the record clearly shows that appellant in the proper time and in the proper way made his motion before the district court, seeking to have the judge to command the reporter to make out the proper report of the testimony of the case, which the court refused, and to which he excepted at the time.

The petition before the district judge, as well as the petition for mandamus to this court and the proof, is strictly and completely in accordance with the statute, and with the opinion of this court in Ex parte Fread, 204 S. W. 113. In accordance with the opinion of this court in that case, the clerk of this court will enter an order directing and requiring that said Mr. McGinnis prepare a transcript of his notes of all the testimony introduced on the trial, and to file the same with the clerk of the district court where the case was tried within 15 days from the date of the service of this order upon him.

Further consideration of the case on its merits will be postponed for a reasonable length of time, to await the filing in the court below of a statement of facts.

Mandamus granted, requiring the stenographer to prepare and file a transcript of all testimony heard on the trial of this cause.

On the Merits.

LATTIMORE, J.

In this case appellant was convicted of murder in the district court of Potter county, and his punishment fixed at 15 years in the penitentiary.

An inspection of this record shows that this cause was tried in court below before Hon. Hugh L. Umphres, judge, and all the orders on motions, bills of exceptions, etc., are signed by him, as well as the charge. We find in the record what purports to be a statement of facts, signed by counsel for appellant and apparently by the district attorney and certified as correct by Henry S. Bishop, judge of the district court of Potter county, Tex. Under what appears to be an unbroken line of decisions of this court, we are not at liberty to consider a statement of facts so authenticated. It is uniformly held that a statement of facts must be approved by the judge before whom the case was tried. Graham v. State, 10 Tex. App. 684; Richardson v. State, 71 Tex. Cr. R. 111, 158 S. W. 517; Porter v. State, 72 Tex. Cr. R. 71, 160 S. W. 1194.

Appellant reserved four bills of exceptions, none of which present error which we can consider in the present condition of the record. Three of the bills of exceptions are to matters left out of the court's charge, or the refusal of the court to give a special charge instructing the jury to return a verdict of not guilty. These matters we cannot decide, in the absence of a statement of facts.

We have examined the appellant's motion for new trial, and find that his first ground of complaint is that the second count in the indictment, upon which the state elected to prosecute, is defective, in that it lacks the formal heading and matters necessary to make the same legal. This question is well settled against appellant's contention, as the formal parts pertaining to the first count, when such count is abandoned, will apply to the second count.

The claim of newly discovered evidence, set up in the motion, is not properly sustained by affidavits or evidence before the trial court. The ground that the trial court erred in refusing special charges raises matters which cannot be reviewed in the absence of a statement of facts. Nor can the objection that the judgment is contrary to the evidence be reviewed for the same reason.

Finding no error in the record, the judgment of the lower court is affirmed.

On Motion for Rehearing.

This case was affirmed at a former day of this term; the statement of facts not being considered, because same had not been approved by the judge before whom the case was tried. This defect having now been remedied, the case is again before us, and considered in the light of all the facts as shown by said statement.

There were no exceptions taken to the court's charge on the trial, and but four bills of exceptions appear in the record, the first of which refers wholly to a question pertaining to the statement of facts, which has no bearing upon the merits of the case. The second and third bills of exceptions relate to the matter of the court's refusal to peremptorily instruct the jury to return a verdict of acquittal. There was no error in refusing to so charge. The fourth bill of exceptions complains that the court refused to give a special charge requested by counsel for the appellant, on circumstantial evidence. We observe that said...

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4 cases
  • State v. Craft
    • United States
    • United States State Supreme Court of Missouri
    • 11 Junio 1923
  • Pedroza v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 21 Mayo 1924
    ...of crime. Ex parte Fread, 83 Tex. Cr. R. 865, 204 S. W. 113; Fennell v. State, 90 Tex. Cr. R. 408, 235 S. W. 885; Ellis v. State, 85 Tex. Cr. R. 529, 213 S. W. 264; Jackson v. State, 92 Tex. Cr. R. 242, 242 S. W. 732; Sisson v. State, 92 Tex. Cr. App. 601, 244 S. W. The appellant seems to h......
  • Smoot v. State, 13737.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 5 Noviembre 1930
    ...of the second. Alexander v. State, 27 Tex. App. 533, 11 S. W. 628; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Ellis v. State, 85 Tex. Cr. R. 529, 213 S. W. 264; Polk v. State, 101 Tex. Cr. R. 405, 275 S. W. The motion for rehearing is overruled. ...
  • Price v. State, 42469
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 17 Diciembre 1969
    ...of an enhancement portion of the indictment does not affect the signature of the grand jury foreman to the indictment. Ellis v. State, 85 Tex.Cr.R. 529, 213 S.W. 264. The record does not support appellant's claim that he was denied a speedy trial which he attempts to raise for the first tim......

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