Bracy v. State

• Decision Date: 15 February 1899
• Parties: BRACY v. STATE.
• Court: Texas Court of Criminal Appeals

49 S.W. 598

BRACY v. STATE.

Court of Criminal Appeals of Texas.

February 15, 1899.

Appeal from district court, Grimes county; J. M. Smither, Judge.

Alexander Bracy was convicted of theft, and he appeals. Affirmed.

G. B. Abercrombie, for appellant. Robt. A. John, for the State.

BROOKS, J.

Appellant was convicted of the theft of two hogs, and his punishment assessed at confinement in the penitentiary for a term of three years, and he appeals.

There are no bills of exception or statement of facts in the record. Counsel for appellant, G. B. Abercrombie, files an affidavit, setting up reasons why the statement of facts and bills of exception were not filed. In substance, his affidavit is as follows: That on the 20th of June, 1899, in the district court of Grimes county, causes Nos. 3,523 and 3,525 (companion cases to this cause) were tried; that on June 21st this cause was tried; the trial in each resulted in a verdict of guilty; that, on the 21st of June, affiant filed a motion for new trial in each of said cases, which was overruled, and at the same time filed a motion asking for 10 days after the adjournment of the term of court in which to file statement of facts, which motion was granted; that court adjourned on the 22d of June; that the Honorable J. M. Smither, judge presiding, left Grimes county, and that affiant did not know at that time where he went; that the acting district attorney went to Navasota, some 10 miles away; that there were some 16 witnesses examined in each case, making the statement of facts quite lengthy, and there was no stenographer to take the testimony; that affiant completed all the three statement of facts on the 27th day of June 1898, and on the 28th he sent them to the acting district attorney at Navasota for his inspection and approval, and they were returned to affiant on the 29th of June, with some alterations made by the acting district attorney, but not signed by him; that affiant immediately made inquiries as to the whereabouts of Hon. J. M. Smither, the presiding judge, and learned that he was at his home, in Huntsville, Walker county, and on Friday, July 1, 1898, mailed the statements of facts to him, with the request that he approve or correct the same in each case, and order them filed with the papers; that about Wednesday, July 6th, affiant received a letter from Judge Smither, informing him that the statements of facts reached him on July 3d, being the eleventh day after the adjournment of the court, and he therefore declined to approve the statements. In additions to the statement made by counsel for appellant, the Honorable J. M. Smither, judge of the Twelfth judicial district, and the district attorney, Hon. A. M. Campbell, both state that appellant's counsel knew that the district judge was at his home, in Huntsville.

We have repeatedly held that ...