Davis v. State, 13178.

• Decision Date: 19 March 1930
• Docket Number: No. 13178.,13178.
• Citation: 28 S.W.2d 794
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

28 S.W.2d 794

DAVIS v. STATE.

No. 13178.

Court of Criminal Appeals of Texas.

March 19, 1930.

Rehearing Denied April 30, 1930.

Second Motion for Rehearing Denied June 25, 1930.

Commissioners' Decision.

Appeal from District Court, Brown County; E. J. Miller, Judge.

Houston Davis was convicted of selling intoxicating liquor, and he appeals.

Affirmed.

Callaway & Callaway, of Brownwood, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment confinement in the penitentiary for two years.

Two witnesses for the state testified that appellant sold whisky to the party named in the indictment. Appellant did not testify in his own behalf. His wife and other witnesses admitted the presence of the purchaser in appellant's home, but denied that appellant sold him any whisky.

Bill of exception No. 1 is concerned with the refusal of the trial court to change the venue. It was averred in the application that there existed in Brown county so great a prejudice against appellant that he could not obtain a fair and impartial trial. It appeared that there had been numerous raids made by the sheriff's department in which a large quantity of intoxicating liquor had been seized. Many indictments had been returned by the grand jury. The sheriff had been commended for his effort to enforce the liquor laws in a statement signed by citizens of Brownwood and published in the Brownwood papers. The papers had given a great deal of publicity to the effort on the part of the sheriff to enforce the liquor laws, and had called upon the good citizenship to co-operate with him. Accounts of the raids were carried in the papers, as was the charge of the district judge to the grand jury, wherein he commended the officers for their effort to enforce the liquor law. Also there was carried in the papers the statement that some of the officers had been threatened and attacked by bootleggers. A controversy between the sheriff's department and the police department of Brownwood, wherein the sheriff charged that he received no co-operation from the police department, and wherein the chief of police denied such charge, was given publicity in the papers. Several witnesses testified that bootlegging had become bad in the county, and that the indignation of the good citizenship had been aroused. These witnesses testified that in their opinion appellant could not receive a fair and impartial trial in Brown county. Witnesses for the state testified that in their opinion appellant could receive a fair and impartial trial. They said that the good citizenship of the county wanted the liquor laws enforced, but that there was no excitement or indignation prevalent throughout the county. It appears that the population of Brown county is approximately 26,000, 16,000 of such number residing in the city of Brownwood. Very few of the witnesses testifying on the hearing were acquainted with appellant. It seems to have been the theory of appellant that no person charged with a violation of the liquor laws could receive a fair and impartial trial in Brown county, and that, by virtue of the co-operation on the part of the citizenship with the sheriff's department in enforcing the liquor laws, great prejudice had arisen against appellant's case. It appears that some of the good citizens had voluntarily donated sums of money to the sheriff in order that he might employ extra help to be used in detecting violations of the liquor laws. As we understand the matter, these donations were made by a small number of men residing in the city of Brownwood.

The testimony pro and con presented conflicting theories. It is the rule that, if conflicting theories as to prejudice arise from the evidence, the trial court has the discretion of adopting either theory, it being his duty to weigh the evidence. A judgment denying the application will not be disturbed on appeal, unless it be made to appear that the trial court abused its discretion. McNeely v. State, 104 Tex. Cr. R. 263, 283 S. W. 522; Shelburne v. State, 111 Tex. Cr. R. 182, 11 S.W.(2d) 519. We are unable to reach the conclusion that the record reflects an abuse of the discretion vested in the trial court.

The remainder of appellant's bills of exception were filed too late. The court adjourned on the 3rd day of August, 1929. The bills of exception were filed on the 30th of September, 1929. No extension of time for the filing of the bills was granted by the trial court. Article 760, subd. 5, Code Cr. Proc. allows thirty days after the day of adjournment of court for filing bills of exception, provided the trial term is less than eight weeks. There being no order in the record extending the time, and said bills not having been filed within thirty days after the adjournment of court, we are compelled to hold that they were filed too late. Mann v. State, 102 Tex. Cr. R. 210, 277 S. W. 1085.

We find in the record some exceptions to the court's charge. It is recited that said exceptions were duly presented to the trial court before the main charge was read to the jury, but such statement is not authenticated by the trial court. Hence the exceptions are not entitled to consideration.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Since this case was affirmed, appellant has filed in the trial court a motion asking that the trial judge who tried this case enter a nunc pro tunc order granting appellant eighty days from the adjournment of the trial term of the court below within which to file statement of facts and bills of exception—all of which is shown in connection with appellant's motion for rehearing. Responding to appellant's said motion, the trial court, on March 30, 1930, made such nunc pro tunc order. This he was entirely without authority to do. Article 828, Code Cr. Proc., is plain, and has been often followed and construed by this court. It is lucidly discussed by Judge Davidson in Quarles v. State, 37 Tex. Cr. R. 362, 39 S. W. 668. Same has been uniformly adhered to by us in other cases; the most recent appearing to be Acuff v. State, 98 Tex. Cr. R. 71, 260 S. W. 572, 262 S. W. 761. The case of Lewis v. State, 34 Tex. Cr. R. 126, 29 S. W. 384, 774, 30 S. W. 231, and Quarles v. State, supra, have been many times referred to with approval. In Clay v. State, 56 Tex. Cr. R. 515, 120 S. W. 418, an attempt was made to amend the record by sending up certified copies of memorandums upon the judge's docket relative to the notice of appeal.

After stating what is now article 828, Code Cr. Proc., this succinct statement is made: "Nor can these orders be entered nunc pro tunc." In Mayhew v. State, 69 Tex. Cr. R. 207, 155 S. W. 191, 203, passing upon the proposition of an attempted order made by the trial court while the case was pending appeal in this court, it is stated: "It would seem unnecessary to cite authorities in support of the announced proposition that the court below lost all jurisdiction while the case was pending in this court, and that it could not assume any jurisdiction in the case for any purpose until after mandate of this court had been filed in the lower court. The statute and the cases make this rule absolute." In Walker v. State, 85 Tex. Cr. R. 483, 214 S. W. 331, the following appears: "The second proposition is that pending the appeal the court from which the appeal was taken is powerless to enter this character of order; that its jurisdiction would be limited to supplying lost or destroyed records. We find this to be a correct proposition under the statute and decisions construing that statute," citing authorities.

It is claimed that under articles 2227-2229, Revised Civil Statutes 1925, records may be corrected to speak the truth. We do not think it of any value to discuss this proposition, for the obvious reason that at the same time these statutes were enacted pertaining to civil cases, article 828, Code Cr. Proc. was also re-enacted, having specific reference to the rule in criminal cases. We observe, however, some authorities in civil matters. In New York Life Ins. Co. v. Herbert, 48 Tex. Civ. App. 95, 106 S. W. 421, it is stated that, where the plaintiff's recovery was excessive, the filing of a remittitur in the trial court was unavailable after the Court of Civil Appeals had obtained jurisdiction on writ of error. In Texas Harvester Co. v. Wilson-Whaley Co. (Tex. Civ. App.) 210 S. W. 574, appears the statement that, after adjournment of term during which judgment was rendered, trial judge has no jurisdiction to correct error in allowing excessive interest. See, also, Knight v. Waggoner (Tex. Civ. App.) 214 S. W. 690, and Wier v. Yates (Tex. Civ. App.) 256 S. W. 636. These cases are merely cited arguendo.

Our attention is called to what we said in Williams v. State, 111 Tex. Cr. R. 511, 14 S. W.(2d) 274, in that part of the opinion on application for leave to file second motion for rehearing. The matter therein acted upon was before us without any brief on behalf of the state. Without looking to article 828, supra, and the decisions thereunder, we stated that we would grant appellant's application to the extent of considering the bills filed within the time allowed by an order appearing in the minutes, shown by a nunc pro tunc order to have been corrected to correspond with the time allowed by the court in his docket entry. Giving effect to article 828, supra, we were wrong in considering said bills of exception. What was said by us in said opinion, in so far as it may be deemed authority for considering such bills of exception, will be overruled.

Regretting that the record in the instant case was not made up in accordance with what the learned trial judge now says in his nunc pro tunc order, same should have been, and, because we must adhere to the law...