Evans v. State

• Decision Date: 12 February 1919
• Docket Number: (No. 5290.)
• Parties: EVANS v. STATE.
• Court: Texas Court of Criminal Appeals

209 S.W. 147

EVANS v. STATE.

(No. 5290.)

Court of Criminal Appeals of Texas.

February 12, 1919.

Appeal from Kaufman County Court; J. P. Coon, Judge.

Tom Evans was convicted of theft of property under value of $50, and he appeals. Reversed.

Huffmaster & Huffmaster, of Kaufman, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for theft of property under the value of $50.

The statement of facts is so presented that it cannot be considered, and appellant asks that the case be reversed for want of securing a statement of facts. The affidavit in connection with the question of diligence in securing the facts may be briefly stated as follows: The court adjourned about the 2d or 3d of April. An order was entered allowing 20 days in which to prepare and file statement of facts. Within 5 or 6 days after adjournment, the statement of facts was drawn up by the defendant's attorney and presented to the county attorney, who refused to agree. It was then carried to the county judge, who promised that the statement of facts would be prepared in time. Efforts were made by counsel to have the evidence properly filed, but without success. Promises of the county judge, it seems, continued for about 90 days, after which time he refused to file same; at least, such is the intimation in the affidavit. There was no statement of facts filed prior to the time the record was made up and filed in this court, which occurred on the 16th day of December, 1918. The affidavit made by counsel, showing his failure to get a statement of facts, and that it was through no negligence on his part was filed in this court on the 22d day of January, 1919. A statement of facts was then prepared and filed in this court, but not in the county court, on the 3d day of February, 1919. Under the law this statement of facts should have been filed before the transcript was made up and embodied in the transcript as part of it. This evidence could not be considered because not part of the transcript, and it is sent up long after the transcript was filed in this court. It is not even filed in the trial court. This is an original statement of facts. As we understand the statute, in any case a statement of facts must be prepared within 90 days, and, if that is not done, same must be filed before the transcript is filed in this court, and in misdemeanor cases the evidence must be incorporated in the transcript, and cannot be sent up, as in felony cases...