Aistrop v. State

• Decision Date: 18 January 1893
• Citation: 20 S.W. 989
• Parties: AISTROP v. STATE.
• Court: Texas Court of Criminal Appeals

20 S.W. 989

AISTROP v. STATE.

Court of Criminal Appeals of Texas.

January 18, 1893.

Appeal from district court, Dallas county; R. E. BURKE, Judge.

Frank Aistrop was convicted of murder in the second degree, and appeals. Affirmed.

R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 15 years. The conviction occurred on November 12, 1892, motion for new trial overruled on the 21st of the same month, and notice of appeal thereupon entered. The court adjourned for the term on December 10th thereafter. Under a rule of the court, Monday of each week was set apart for hearing and disposing of the motion docket. It was a rule of practice in the trial court, and so understood by defendant and counsel, that statements of fact in appealed cases were required to be prepared and filed during term time, and that time would not be allowed after adjournment of the term for that purpose, except in cases tried so late in the term that such rule could not reasonably be complied with. In this case defendant presented no statement of facts to the judge, and there is therefore none in the record. Nineteen days after his motion for a new trial was overruled and notice of appeal entered, and on the day of adjournment, his attorney presented to opposing counsel a document prepared by himself, purporting to be a statement of the facts adduced on the trial, for his inspection and agreement. It is shown that this occurred too late to admit of such inspection and agreement during the term of court. Defendant now seeks a reversal of the judgment because of his failure to secure a statement of the facts. The reasons assigned are — First, the defendant expected his friends to raise the necessary funds to secure the testimony from the stenographer who took down same on the trial; and, secondly, because the court failed to postpone adjournment a sufficient length of time to enable defendant to secure the necessary agreement of opposing counsel.

The statement was tendered opposing counsel the day the court expired by law. No order was sought or obtained authorizing the filing of the statement subsequent to adjournment. The recor shows no diligence whatever, under the facts stated in the affidavits. On the contrary, it is manifest that there was none used. Willson, Crim. St. §§ 2560-2562; Rev. St. art. 1377 et seq.;¹ George v. State, 25 Tex. App. 229, 8 S. W. Rep....