Hart v. State

• Decision Date: 18 February 1920
• Docket Number: (No. 5664.)
• Citation: 218 S.W. 1054
• Parties: HART v. STATE.
• Court: Texas Court of Criminal Appeals

218 S.W. 1054

HART v. STATE.

(No. 5664.)

Court of Criminal Appeals of Texas.

February 18, 1920.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

W. M. Hart was convicted of embezzlement, and he appeals. Affirmed.

Heidingsfelders, of Houston, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of embezzlement, and allotted a term of two years in the penitentiary.

There is a motion to strike out the bills of exception. The record discloses that the court convened on August 4, 1919, and adjourned on November 1, 1919. Sentence was pronounced on September 27, 1919. This would show that the court continued in session something like three months. Under the statute appellant would be required to file his bills of exception within 30 days after the final judgment, which is the sentence, and this was pronounced on the 27th of September. The bills of exception were not filed within that time, nor until November 25th. On October 31st appellant applied for an extension of time. In this he alleges that when defendant's motion for a new trial was overruled he placed an order with the official stenographer for a statement of facts in question and answer form, as well as narrative form, and requested the testimony of the jurymen on the hearing of the motion for a new trial as to the misconduct of the jury, which was set up in said motion. Since said time counsel for defendant has repeatedly asked the official court stenographer for said record, and he has been informed by him that he was busy with other matter, and that he had plenty of time in which to give the statement of facts to appellant's counsel, and that he would watch the time and see that the defendant was protected. That up to the time of filing this motion, which was October 31st, the defendant has been unable to get the statement of facts, as well as the testimony of the jury on the trial of the aforementioned motion for a new trial, and in view of the facts herein stated the defendant is unable to file a statement of facts or his bills of exception, and by reason thereof asks the court to allow him 30 days from and after the adjournment of court in which to file the statement of facts and bills of exception. The court says that on the 31st day of October the motion of appellant's counsel was presented, requesting the court to extend the time in which to file statement of facts and bills of exception, giving as his reasons those set out in the motion above mentioned. He further states this motion was presented to the court more than 40 days after the motion for new trial was overruled, and the term of the criminal district court of Harris county continued for more than eight weeks, to wit three months, and the court was of opinion he could not at that time extend the time that had already expired under the law, but, being desirous of having the higher court pass upon the case with the facts before them, the court here and now grants the motion to extend the time of filing the statement of facts and bills of exception for 30 days from October 31st. The court further stated in this connection that he was of opinion that the delay in filing the statement of facts and bills of exception is the fault of the stenographer.

This is the condition of this matter as presented by the record. We are of opinion the state's motion must be sustained. If the stenographer was at fault, as certified by the judge, and as stated by appellant's counsel in his motion, then it became obligatory upon the appellant to apply for mandamus in time...