Berrian v. State

• Decision Date: 28 April 1920
• Docket Number: (No. 5796.)
• Citation: 221 S.W. 282
• Parties: BERRIAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 282

221 S.W. 282

BERRIAN v. STATE.

(No. 5796.)

Court of Criminal Appeals of Texas.

April 28, 1920.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Early Berrian was convicted of manslaughter, and he appeals. Reversed and remanded.

See, also, 212 S. W. 509.

J. E. Clarke, of Hillsboro, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for manslaughter.

The Assistant Attorney General moves to strike out the statement of facts because not approved by the trial judge. It is made to appear by a statement of the trial judge and affidavit of counsel for appellant that the statement of facts was prepared in ample time and approved by the attorneys, and left with the judge for his official approval. The trial judge says:

"I was sure that I had signed and approved the statement of facts until my attention was called to the matter by appellant's counsel that the same did not have my signature and approval. It was my intention to sign and formally approve the statement of facts, and my failure to place my signature of approval upon the statement of facts was an inadvertence and an oversight. I was so sure that the statement of facts contained my signature of approval that I stated to counsel for appellant that I had signed and approved the statement of facts shortly after the same was presented to me, and again on the 13th day of this month I assured counsel for appellant that the statement of facts was duly signed and approved by me, and it was my recollection, and is yet my recollection, that I signed the same, but the same not appearing to be signed by me was the result of an inadvertence or oversight."

The question on the motion to strike out the statement of facts because through inadvertence of the judge the statement of facts was not signed, when the judge had in fact in his mind approved said statement of facts as being correct, it occurs to us, should not form the basis for the elimination of the evidence. While it is true under the law the statement of facts should be approved by the judge signing the same, yet we are of opinion that, where the judge certifies that he in fact thought he had approved and intended to approve, and believed he had approved, the statement of facts until his attention was called to the matter, and his omission to do so was an oversight, it would be rather technical to deprive a party of a statement of facts under such circumstances. If the judge believed he had approved the statement of facts and signed it and filed it with the clerk with that impression, we think this would be a sufficient showing to meet the motion to strike out the statement of facts and authorize, if not require, this court to consider it. This would not come within the rule that would require a reversal for want of a statement of facts where it arose from no fault on the part of defendant in not giving the matter proper attention. We therefore are of opinion that the statement of facts as presented should be considered.

This is the second appeal; the former appeal being reported in 212 S. W. 509.

There is quite a lot of testimony introduced, the substance of which is that appellant was a tenant of deceased and living in a house within 100 to 150 yards of the house occupied by deceased. On Tuesday before the homicide on Thursday the deceased complained that appellant was not chopping cotton with sufficient...