Exon v. State

• Decision Date: 26 May 1894
• Citation: 26 S.W. 1088
• Parties: EXON v. STATE.
• Court: Texas Court of Criminal Appeals

26 S.W. 1088

EXON v. STATE.

Court of Criminal Appeals of Texas.

May 26, 1894.

Appeal from district court, Bexar county; George H. Noonan, Judge.

W. S. Exon appeals from a conviction of rape. Reversed.

Fleming, Camp & Ingram, for appellant.

On Motion for Certiorari.

SIMKINS, J.

Appellant moves the court to grant him a writ of certiorari to the clerk of the district court of Bexar county commanding him to incorporate certain bills of exceptions in the transcript of the case. It appears by affidavit of reputable counsel, filed in behalf of said motion, that a number of exceptions were taken to the argument of counsel for the state, and within three days thereafter, and before the adjournment for the term, he prepared bills of exceptions, and tendered them to the district attorney and the district judge, the Honorable George H. Noonan; that the district attorney refused to read them, and the district judge read two, but refused to read the other six, and indorsed the refusal on the same; that counsel then procured bystanders to sign the bills of exceptions, and the same were duly filed by the clerk; that subsequently, without notice to counsel, and in his absence, the district clerk erased his filing mark from said bills of exceptions by order of the district judge. It is further shown that the bills of exceptions were prepared from the notes of the stenographer who took down the argument and evidence in the case; and the said stenographer and two other reputable citizens signed said bills of exceptions as bystanders. We are of opinion that the order prayed for should be granted, and Henry Unnschied, clerk of the district court of Bexar county, is commanded forthwith to forward to this court, as a part of the record of said cause, a copy of the said bills of exceptions and papers relating thereto, duly certified, under his hand and official seal.

On the Merits.

(June 13, 1894.)

Appellant was convicted of rape, and his punishment assessed at 15 years in the state penitentiary. In obedience to the writ of certiorari issued from this court, the bills of exceptions signed by bystanders were sent up by the clerk of the district court of Bexar county, and are now before us. The record shows that said bills of exceptions, seven in number, relate entirely to the argument of the district attorney in the case. They were each indorsed "Refused" by the district judge, and were subsequently attested by three bystanders, and filed April 20, 1894, but the file marks were erased. The verdict was rendered on the 18th of April, 1894. No reason is given for the refusal or the erasure of the file marks.

1. The question to be decided is what consideration is to be given to a bill of exceptions which the court has refused to approve as presented, and failed to file one in lieu thereof? Whatever may have been the practice prior to the adoption of the Revised Statutes (Pasch. Dig. arts. 217-219; Houston v. Jones, 4 Tex. 170), it is now the statutory right of a party taking a bill of exceptions, if not permitted to do so at the trial, to write out and present the same to the judge for his signature during the term, and within 10 days after the conclusion of the trial (Rev. St. art. 1363); and the "conclusion of the trial" is held to be after verdict, or after overruling motions for a new trial or in arrest of judgment, where the same are filed (Willson's Cr. St. § 2366; Shubert v. State, 20 Tex. App. 323; Blum v. Schram, 58 Tex. 524). The statute further declares that, when the judge finds the bill so presented to be incorrect, he shall suggest the corrections; and, if not agreed to by the party presenting the bill, the court shall return the bill with his refusal indorsed thereon, and shall make out, sign, and file with the clerk such a bill of exceptions as will, in his opinion, present the ruling of the court as it actually occurred. Rev. St. arts. 1365, 1366. Should the party be dissatisfied with the bill of exceptions filed by the judge, he may then resort to bystanders, as provided in article 1367, Rev. St. Under the plain terms of the statute, the right to resort to bystanders arises only when the court has refused the offered bill of exception, and filed his own bill in lieu thereof. Until that is done, the counsel cannot assume that the court will act unfairly in preparing the bill, or that he may not agree to the bill as filed by the court. When, therefore, he has within 10 days after conclusion of the trial prepared and presented his bill of exception, and it has been refused, he has done all that can be required of him until the court acts in the premises as required by the statute. The defendant cannot be made to suffer from the neglect of the judge; and if the court refuses the bill as presented, and fails to file one in lieu thereof, then we will certainly look to the bill so presented and refused to ascertain whether it contains merit, and treat it as if it in fact had been approved. Belo v. Wren, 63 Tex. 728. If the court should decline to indorse a refusal on the bill, or refuses to permit it to be filed, appellant has simply to resort to his writ of certiorari for redress. Much of the difficulty with reference to bills of exceptions would be obviated if the court would permit them to be taken at the time the exception is made, and not wait until the result of the case has magnified the importance of the supposed error, when judicial action frequently invokes adverse criticism. It should always be remembered that the trial judge, while he may state reasons for his action, has no authority to contradict or qualify the bill of exceptions without consent of counsel (Rev. St. art. 1366); and while such consent will be presumed when counsel accepts the bill after it has been changed by the court (Jones' Case [Tex. Cr. App.] 23 S. W. 793),...