Edmondson v. State
| Decision Date | 02 May 1928 |
| Docket Number | (No. 11410.) |
| Citation | 6 S.W.2d 119 |
| Parties | EDMONDSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, San Saba County; J. H. McLean, Judge.
Will Edmondson was convicted of murder, and he appeals. Reversed and remanded.
See, also, 106 Tex. Cr. R. 321, 292 S. W. 231; 107 Tex. Cr. R. 1, 294 S. W. 587.
J. F. Taulbee, of Georgetown, and J. H. Baker, of San Saba, for appellant.
G. A. Walters, of Mexia, and A. A. Dawson, State's Atty., of Austin, for the State.
Attorneys for the state have filed a motion to dismiss this appeal based upon two grounds:
(1) Because the transcript in this case was not filed within 90 days after the adjournment of the court at which conviction was had.
(2) Because the transcript was forwarded by the attorney of appellant and not by the district clerk.
Under the terms of articles 843 and 845, C. C. P., it is made the duty of the clerk to prepare and forward the transcript to this court. It was said in Young v. State, 86 Tex. Cr. R. 594, 218 S. W. 505:
It is not a valid ground for the dismissal of an appeal because the transcript was filed after 90 days from the adjournment of the court, unless the failure to file same was due to the negligence of the defendant or his attorney or to some act of one or both of them. Gould v. State, 69 Tex. Cr. R. 250, 153 S. W. 326; Lord v. State, 73 Tex. Cr. R. 109, 164 S. W. 1021. It affirmatively appears in the motion that the failure to file the transcript in time was due to the demand of the district clerk for his fees for making out the transcript. Such a fee could not be demanded or legally received by the clerk in a felony case.
The state's motion is not supported by any affidavit while the answer of appellant is so supported. There is no affirmative showing that the record was transmitted by the attorney for appellant to this court.
While the transcript appears to have been filed about five months after the date of the adjournment of court, it satisfactorily appears that it was the illegal demand of the clerk that caused such delay rather than the negligence of counsel for defendant. Under these circumstances the motion will be denied and the appeal considered on its merits.
A former appeal of this case will be found reported in 106 Tex. Cr. R. at page 321, 292 S. W. 231. The facts are not substantially different on this appeal and will be found sufficiently reported on the former appeal.
It was the theory of the state that the shooting of deceased, Fred Bolinger, was not known until the morning of November 10 at about 8 o'clock a. m. The testimony of Mrs. Sarah Fuston, mother of the accomplice, Fred Fuston, was introduced by the state, who testified over proper objection that the first time she heard of the shooting of deceased was from appellant's oldest girl, who told her about it at about 8 o'clock the morning of November 10. The state's theory seemed to be that appellant, having done the shooting,...
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