Fowler v. State

• Decision Date: 11 June 1913
• Citation: 158 S.W. 1117
• Parties: FOWLER v. STATE.
• Court: Texas Court of Criminal Appeals

158 S.W. 1117

FOWLER v. STATE.

Court of Criminal Appeals of Texas.

June 11, 1913.

Rehearing Denied June 27, 1913.

Appeal from District Court, Tarrant County; R. H. Buck, Judge.

Paul Fowler was convicted of murder, and he appeals. Affirmed.

G. R. Lipscomb, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of murder in the first degree, and his punishment assessed at death. The term of court at which appellant was tried convened August 5, 1912, and adjourned November 2, 1912. The motion for a new trial was filed in the court below August 23, 1912, and overruled by the court on the 26th day of August, 1912. There are several bills of exception in the record, and a statement of facts, all filed on the 29th day of November, 1912—95 days after the date of the overruling of the motion for new trial. Section 7, chapter 119, Acts 32d Leg., provides that, when appeal is taken from the judgment rendered in any cause in district court, the parties are entitled to and granted 30 days after the day of adjournment of court in which to prepare and file a statement of facts and bills of exception; provided that, if the term of said court may by law continue in session more than 8 weeks, said statement of facts and bills of exception shall be filed within 30 days after the motion for new trial shall have been overruled. It is further provided, for good cause shown, the court may extend the time; but the time shall not be extended so as to delay the filing of the transcript of the record in the appellate court within the time prescribed by law. Our Civil Statutes and the rules of the Supreme Court and the Code of Criminal Procedure provide for the filing of the transcript in the appellate court within not exceeding 90 days. Rule 2, adopted by the Supreme Court for the Courts of Civil Appeals (142 S. W. x); Rules 1 and 2 of the Supreme Court for the Court of Criminal Appeals (142 S. W. xvii). Article 5, § 25, Const. The judge in this case did not seek to grant more than 90 days, and if he had done so, his order would have been void. Inasmuch as the statement of facts and bills of exceptions were not filed within the time provided by law, the court continuing more than eight weeks, we are not authorized to consider them, and the motion for new trial presents no question we can review, in the absence of a statement of facts and bills of exceptions. Unless the statutes make provision for the filing of statement of facts and bills of exception after the adjournment, under the rules of law, those papers must be filed in term time. Our statute is liberal in this respect, but there is no authority in this court, or any other court, to grant more time after adjournment than is specifically allowed by the statute.

Appellant filed a motion to quash or challenge the venire of jurymen drawn to compose the grand jury. The court, in his order overruling the motion, states he heard the evidence adduced on the hearing of this challenge or motion, and the argument of counsel thereon, and, being fully advised as to the law governing the issues, is of the opinion that defendant's challenge should be overruled. As the evidence heard on said motion was not filed in term time, nor in the time allowed by law for filing statements of facts and bills of exception, we cannot consider same, and under such circumstances we must presume that the court ruled correctly in the premises.

Appellant filed a motion for a continuance. No bill of exception was reserved within the time allowed by law; consequently, under an unbroken line of decisions, we would not be authorized to review this question. However, we may add that had a bill been properly reserved, the application presents no ground for a continuance.

The court did not err in overruling the motion to quash the indictment. The indictment is couched in terms frequently approved by this court, and the grounds alleged are similar to those alleged in the challenge to array of grand jurymen, and, as said in that instance, the court heard the testimony adduced thereon; this evidence is not brought before us in a way we can consider it; therefore, we presume the court ruled correctly.

The grand jury was organized in the manner provided by our Code, and those provisions of the Code are not unconstitutional, as contended. Those were allegations contained in the motion for new trial which it took evidence to support; the court heard the evidence; we do not know what the testimony was; and under such circumstances we cannot review that ground in the motion for new trial which states the grand jury was not properly sworn, etc.

It was unnecessary for the court to swear the sheriff in ordering him to summon the special venire drawn in accordance with law. The oath of office he took was sufficient. He was sworn to summon the talesmen as provided by our Code.

The confession of defendant was reduced to writing, and is in full compliance with our statute governing the admissibility of confessions. If there was any testimony which would tend to show that it should not have been admitted in evidence, the evidence should have been preserved by a bill of exception, prepared, approved, and filed within the time provided by law. The confession reads: "I, Paul Fowler, after having been duly warned by J. M. Brown, assistant county attorney, first, that I do not have to make any statement at all; and that if I do make a statement the same may be used in evidence against me on the trial for the offenses or offense concerning which this statement is herein made, and that this statement must be freely and voluntarily made, do...