Coffey v. State

• Decision Date: 25 May 1910
• Citation: 131 S.W. 216
• Parties: COFFEY v. STATE.
• Court: Texas Court of Criminal Appeals

131 S.W. 216

COFFEY v. STATE.

Court of Criminal Appeals of Texas.

May 25, 1910.

On Motion for Rehearing, October 12, 1910.

Appeal from District Court, Wichita County; A. H. Carrigan, Judge.

Dave Coffey was convicted of second degree murder, and he appeals. Affirmed.

F. W. Householder, Geo. A. Smoot, and S. M. Foster, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

The appeal in this case is from a judgment convicting appellant of murder in the second degree and assessing his punishment at confinement in the penitentiary for life.

It appears from the record that the district court began in Wichita county upon the 31st day of May, 1909, and adjourned on the 3d day of September of the same year; the term including considerable time beyond 8 weeks. It further appears that the appellant's motion for new trial was overruled on July 13th of last year, and he was by the court on the same day duly sentenced. The statement of facts in the case was filed in the court below on October 1, 1909. On August 13th the court made and entered an order as follows: "Upon request, defendant is granted 60 days' extension of time from this day in which to file statement of facts and bills of exception." From July 13th to August 13th, excluding both days, full 30 days intervened, and with the close of August 12, 1909, the time allowed by law within which to file a statement of facts, in view of the fact that the term of court lasted more than 8 weeks, had elapsed. It was not competent for the court thereafter, by order, to extend the time for filing such statement of facts.

Section 7, p. 376, Acts 31st Leg., is as follows: "When an appeal is taken from the judgment rendered in any cause in any district court or county court, the parties to the suit shall be entitled to and they are hereby granted thirty days after the day of adjournment of court in which to prepare and file a statement of facts and bills of exception; and upon good cause shown the judge trying the cause may extend the time in which to file a statement of facts and bills of exception. Provided, that the court trying such cause shall have power in term time or in vacation, upon the application of either party, for good cause, to extend the several times as hereinabove provided for the preparation and filing of the statement of facts and bills of exception, but the same shall not be so extended so as to delay the filing of the statement of facts, together with the transcript of record, in the appellate court within the time prescribed by law, and when the parties fail to agree upon a statement of facts, and that duty devolves upon the court the court shall have such time in which to do so, after the expiration of the thirty days as hereinbefore provided, as the court may deem necessary, but the court in such case, shall not postpone the preparation and filing of such statement of facts and bills of exception so as to delay the filing of same, together with a transcript of the record in the appellate court within the time prescribed by law. Provided, if the term of said court may by law continue more than eight weeks, said statement of facts and bills of exception shall be filed within thirty days after final judgment shall be rendered unless the court shall by order entered of record in said cause extend the time for filing such statement and bills of exception."

We have heretofore held that, when once the time allowed by law within which to file the statement of facts and bills of exception has passed, it is not competent for the court by order to extend the time. This seems to be the clear meaning of the statute. We are not, therefore, authorized to consider either the statement of facts or bills of exception in the record. Without a statement of facts or bills of exception, there is no issue or question which, under the law, we are authorized to consider; and it follows that the judgment of conviction must be, and it is hereby, affirmed.

On Motion for Rehearing.

On the 25th day of May of this year the judgment of conviction in this case was by this court affirmed. On the record, as it then appeared before us, we concluded that the statement of facts had not been filed within such time as to authorize us to consider same. Since then a motion for rehearing has been filed, in which it is made to appear that on July 13, 1909, on the overruling of the motion for new trial, an order was entered by the court on his docket in which 20 days after adjournment was allowed within which to file a statement of facts and bills of exception, which entry is also supported by a statement of both the district judge and district clerk of the trial court. In this condition of the record, there seems to be no doubt but that the statement of facts was in fact filed in the time allowed by law, and it is manifest, therefore, that the motion for rehearing should be granted, which is now done, and the case will be disposed of on its merits.

The facts show that appellant and the deceased, Sam Barnett, were brothers-in-law; that appellant had had some trouble with his wife, resulting in her abandoning him, in which, without going into the reasons for it, the deceased figured somewhat actively. After the separation some time the appellant returned to Wichita county and worked a short time, and during this time the evidence shows he uttered the most serious and direct threats toward Barnett, and on the day of the homicide hired a gun, went to his place, approached the house under circumstances which indicate that he was seeking to observe the actions and whereabouts of Barnett, fired one shot at him on the outside of his house, pursued him with his gun in his hand into his house, and just as Barnett got his gun, and before he fired, shot and killed him. There is ample evidence in the record offered by the state, if believed, to show an aggravated case of murder in the first degree. On the other hand, appellant testified that his purpose and mission in going to Barnett's house was peaceful and warranted, and that his act in shooting Barnett was in self-defense. The evidence tends to show that appellant was an uneducated man, indeed very ignorant, and could neither read nor write; and it is contended by his counsel in an able brief and argument that the evidence raised the issue of insanity, which was not submitted by the court. This is a mere outline of the case, but will be sufficient, however, to make understood what we shall say.

1. The first matter presented relates to the action of the court in overruling appellant's application for a continuance. The record shows that the indictment in the case was returned against appellant on the 3d day of June, 1909. Application was made to continue the case on account of the absence and for the want of the testimony of J. M. James and wife, and on account of the absence of appellant's wife. It is alleged in general terms that subpoenas were asked for in due time and directed to the sheriff or any constable of Wichita county, Tex., but does not allege when they were issued, or that they were in fact placed in the hands of the sheriff or any constable of Wichita county, Tex., or by whom they were so placed. The record further shows that the subpœna for J. M. James was returned into court on the 10th day of June, and the subpœna for Mrs. James and Mrs. Coffey returned into court on the 21st day of June, 1909. The judgment of conviction was rendered in the case on July 10th. There is in the application a general allegation that neither appellant nor his counsel knew, at the time the subpœnas were issued, that these witnesses did not reside in Wichita county, and that he had learned of their residence in Oklahoma only on the morning of the day when the application was filed. What effort had been made to learn of their whereabouts is not disclosed, nor is there any statement of any diligence used to ascertain their whereabouts, or to secure their testimony, from the day of the return of the subpœnas until the case was called for trial. It further appears that Mrs. Coffey was present at the trial. It does not appear that either James or his wife were present. The testimony of James and his wife was in a general way material; but their testimony did not relate to the immediate facts of the killing. We think, as presented, that there was such an utter lack of diligence, tested by the allegations in the application, to secure the attendance of these witnesses and to procure their testimony, as authorized the court in overruling the application, and there is no such error shown in the record as would justify us in reversing the case on account of this action of the court.

2. While the witness Miller was on the stand, he was asked by appellant's counsel the following question: "Judging by defendant's actions, was he considered a man of average intelligence, or foolish?" This was objected to on the ground, first, that the witness had not qualified himself to render a nonexpert opinion, and had not qualified as an expert to render an expert opinion in regard to the intelligence of appellant, and because it was immaterial as to whether the defendant is of average intelligence, above the average, or below the average. This bill is manifestly...