Bailey v. State, 23341.
| Decision Date | 29 May 1946 |
| Docket Number | No. 23341.,23341. |
| Citation | 195 S.W.2d 361 |
| Parties | BAILEY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Orange County; F. F. Adams, Judge.
Leonard R. Bailey was convicted of incest, and he appeals.
Affirmed.
R. Lee Davis, of Orange, and A. S. Baskett, of Dallas, for appellant.
Ernest S. Goens, State's Atty., of Austin, for the State.
Appellant was convicted of incest, and assessed a penalty of ten years in the penitentiary, and he appeals.
We are early met herein by the fact that the statement of facts and bills of exceptions were filed 92 days after the notice of appeal was entered in the lower court.
There are present affidavits from the appellant's attorney, the trial judge and the district attorney, appellant's attorney contending that he has been denied approval of the statement of facts and bills of exceptions through no fault of his own, and he insists upon our considering the same as though having been filed within the time prescribed by law.
It is shown from the transcript that appellant's motion for a new trial was overruled on October 12, 1945, at which time he gave notice of appeal, and was "granted 90 days from and after such date to prepare, present and file his bills of exceptions in said cause." It therefore appears therefrom that the last day for filing such bills as well as the statement of facts fell on January 10, 1946.
It is gathered from the affidavits present that the court reporter prepared a transcript of the testimony in question and answer form, and appellant's attorneys themselves undertook to prepare a narrative form thereof. That on January 1, 1946, appellant's attorney presented to the district attorney who prosecuted this case the narrative statement of facts and fifteen bills of exceptions for his examination and approval, at which time the district attorney refused their approval unless he was furnished the question and answer form of the testimony from which evidently the narrative statement had been made. The district attorney's affidavit shows that he returned such papers to appellant's attorney with such request on Sunday evening January 6, 1946. Appellant's attorney notified the district attorney that he was sending the narrative statement, the bills of exceptions and the question and answer transcript of the testimony prepared by the court reporter to the district attorney, requesting the approval of the statement of facts and bills of exceptions. He was told that the district court of San Augustine County convened on the Monday following, nevertheless the papers would be ready for filing not later than Tuesday, January 8, 1946; that neither the district judge nor district attorney would be present in Jasperon that date, but the completed papers would be left with the district clerk at Jasper, who would deliver same to appellant's attorney. This seemed to be satisfactory to such attorney. The papers were ready on Tuesday, January 8, 1946, and left with such clerk.
Judge Adams' affidavit shows that he received these papers through the mail on Sunday, January 6, 1946, and on Monday, January 7, 1946, before leaving for San Augustine to convene his court there, he placed a telephone call for appellant's attorney, who was not in his office, but he directed such attorney to call him at San Augustine, which was done. From San Augustine the judge informed appellant's attorney that these papers had been handed to the district attorney, and as the time was growing short the attorney had better come to Jasper not later than Wednesday, January 9, 1946, as the judge felt sure all papers would be approved and signed at such time. On the following Tuesday afternoon the judge was informed that the district attorney had signed the statement of facts and approved the bills, and thereupon the judge signed the same and approved the bills with certain qualifications. Again on January 10, 1946, about 3 o'clock in the afternoon, after ascertaining that appellant's attorney had not called for these papers which were in the office of the district clerk of Jasper County, the judge called appellant's attorney over the phone and informed him that these papers were still in the hands of such district clerk, and inquired why they had not been gotten by such attorney. The attorney then informed the judge that his car was in bad condition and could not be used, and it was too late for him to come to Jasper, a distance of 75 miles, to get the papers and have...
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