Bankston v. State

Decision Date01 November 1916
Docket Number(No. 4271.)
Citation189 S.W. 481
PartiesBANKSTON v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from Runnels County Court; M. Kleberg, Judge.

Malcolm Bankston was convicted of misdemeanor theft, and he appeals. Affirmed. On motion for rehearing. Motion overruled.

J. W. Powell, of Ballinger, James P. Cogdell, of Winters, and R. B. Truly, of Ballinger, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

This is a conviction for misdemeanor theft. The statement of facts and bills of exceptions were filed 19 days after the term of court adjourned without any order allowing the statement of facts to be filed after adjournment. The Assistant Attorney General's motion to strike them out on that account must therefore be granted. Without these no question is presented which we can review.

The judgment is affirmed.

On Motion for Rehearing.

Some ten days after the affirmance of this case, and nearly six months after the term of the lower court adjourned at which the trial was had, appellant made a motion in the lower court to enter the judgment nunc pro tunc at the trial term, allowing him 20 days within which to file the statement of facts and bills of exceptions. The lower court, on November 10th, instant, at that term of the court, entered such order nunc pro tunc. Appellant brings a certified copy of his said motion and the judgment of the court so entering attached to his motion for a rehearing herein, and asks this court to now consider said statement of facts and bills. The case of Lewis v. State, 34 Tex. Cr. R. 126, 29 S. W. 384, 774, 30 S. W. 231, is precisely in point, and holds directly and specifically that no such order can be entered nunc pro tunc after appeal to this court. This case has uniformly and in a large number of cases been followed by the decisions of this court down to this date, and follows the statute. Quarles v. State, 37 Tex. Cr. R. 362, 39 S. W. 668, Suesberry v. State, 72 Tex. Cr. R. 439, 162 S. W. 849, and a large number of cases collated under article 916, 2 Vernon's Ann. C. C. P. p. 879, and section 258, 1 Branch's Ann. P. C. p. 162. This court therefore cannot consider such statement of facts nor bills of exception.

The motion is overruled.

HARPER, J., absent.

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