Aubrey v. State, 13051.

Citation26 S.W.2d 213
Decision Date26 February 1930
Docket NumberNo. 13051.,13051.
PartiesAUBREY v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from District Court, Wharton County; M. S. Munson, Judge.

Jim Aubrey was convicted of murder, and he appeals.

Affirmed, and writ of certiorari denied.

Ingram & Munson, of Wharton, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for murder; punishment, five years in the penitentiary.

The facts in evidence in this case appear to be sufficient to justify the conclusion of the jury. It is difficult for us to understand the contents of the transcript. It is here without any index. There are five bills of exception, neither of which has any file mark of the clerk of the trial court showing when, if at any time, said bills were filed. The motion for new trial was overruled on June 15, 1929, but in the overruling order of the trial court no time beyond that granted by statute was allowed for the filing of bills of exception. The statutory time for filing such bills is thirty days from the adjournment of the court. Each of said bills contains the notation that it was filed on the 4th day of September, 1929, which date, as above stated, is not verified by any signature of the district clerk. If said bills were in fact filed on September 4th, and if this could be verified, same would appear to have been filed after the expiration of the thirty days' time allowed by law for such filing, and we could not consider them. The indictment and charge of the court, also the verdict and judgment, appear to be in conformity with law.

No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant has filed a motion for rehearing, in connection with which he asks for a writ of certiorari. Attached to the request is a certificate of the clerk advising that the bills of exception were filed and the date of such filing, which cures one defect in the transcript pointed out in our original opinion. Also attached to the request for certiorari is a certified copy of a "docket entry" regarding the extension of time for filing bills of exception. The order indicated by such "docket entry" was never carried into the minutes of the court. Appellant desires us to have the docket entry brought forward and consider it as a part of the record. What was said in Demus v. State (Tex. Cr. App.) 16 S.W.(2d) 251, 252, regarding the matter is directly in point. We quote...

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1 cases
  • Ferguson v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 27, 1963
    ...that we are compelled to follow the holdings of this Court in Demus v. State, 111 Tex.Cr.R. 237, 16 S.W.2d 251, and Aubrey v. State, 114 Tex.Cr.R. 466, 26 S.W.2d 213, which say that the docket entry may furnish a basis for the trial court to order a correction of the The judgment is affirme......

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