Carpenter v. State

• Decision Date: 27 February 1918
• Docket Number: (No. 4763.)
• Citation: 201 S.W. 996
• Parties: CARPENTER v. STATE.
• Court: Texas Court of Criminal Appeals

201 S.W. 996

CARPENTER v. STATE.

(No. 4763.)

Court of Criminal Appeals of Texas.

February 27, 1918.

Rehearing Denied March 27, 1918.

Appeal from District Court, Denton County; C. F. Spencer, Judge.

Ernest Carpenter was convicted of murder, and he appeals. Affirmed.

Sullivan & Hill and A. S. Baskett, all of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant's conviction was for murder and his punishment assessed at seven years' confinement in the state penitentiary.

The state, through the assistant attorney general, has filed a motion to strike out the statement of facts and bills of exception. The term at which the trial took place ended April 13, 1917. The statement of facts was filed July 16th and the bills of exception July 21, 1917, both more than 90 days after the end of the term. The court on April 13th allowed 60 days, which expired June 12th, and on that day allowed 30 days additional, which expired July 12th. On July 10th another extension of 10 days was ordered, and before the expiration of this last-named 10 days the document was filed. Appellant, answering the motion, says that on July 10th, which was two days prior to the expiration of 90 days from the adjournment of the term, the statement of facts agreed to, bearing the agreement of the attorneys, was delivered to the trial judge, and at the same time the bills of exception were delivered to him, and that the trial judge on July 16th, approved and filed the statement of facts without correction, and on the 21st the bills of exception with modification on two of them only.

The power of the trial court to extend the time in which bills of exception and statement of facts may be filed is controlled by article 845, C. C. P., and the limit to which the extension may be made is a total of 90 days after adjournment. This has frequently been decided. Roberts v. State, 62 Tex. Cr. R. 7, 136 S. W. 483.

When an appellant is diligent in his efforts to secure a statement of facts and bills of exceptions and to cause them to be filed in the time required by law, he will not be made to suffer the consequences of the faults of others. George v. State, 25 Tex. App. 229, 8 S. W. 25; Vernon's C. C. P. p. 826, and cases cited. Appellant insists that this rule should inure to his benefit under the circumstances of this case. The correctness of this view depends upon the facts as disclosed by the record. Looking to these it appears that when the 60-day order expired the stenographer's transcribed report of the evidence was in the hands of the leading counsel for appellant. This affirmatively appears in the application for an additional extension filed by appellant June 10th.

The statement of facts, containing 144 pages of typewritten matter, and the bills of exceptions, containing about 30 pages, were placed in the hands of the district judge 30 days after this application was made, being 28 days after the order for an additional extension of 30 days was made on June 12th. At the time they were placed in the hands of the judge there remained 2 days within which they could be filed under the law. Appellant insists that it was possible within these 2 days for the trial judge to have examined, approved, and filed the papers, and that it follows therefrom that appellant is not chargeable with the fault; and in this connection says that the 10 days further extension of time by the judge on July 10th was for the convenience of the court, and that this appears from the order. We do not understand the record to be susceptible to this construction. It appears therefrom that on July 10th appellant made an application for a further extension of 10 days, and that thereafter the court entered an order in the following terms:

"On this the 10th day of July, A. D. 1917, came on to be considered the application of Ernest Carpenter to extend the time for filing statements of fact and bills of exception in said cause, and said application having been considered and good cause found for such extension, and it appearing to the court that an appeal has been taken from the judgment rendered therein and that the statement of facts and bills of exceptions because they are so voluminous cannot be...