Johnson v. State
| Decision Date | 10 February 1897 |
| Citation | 38 S.W. 994 |
| Parties | JOHNSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Tarrant county court; George W. Armstrong, Judge.
Andrew Johnson was convicted of malicious mischief, and appeals. Affirmed.
Lattimore & Ray and W. A. Hanger, for appellant. Mann Trice, for the State.
Appellant was convicted of malicious mischief, and fined one dollar, and prosecutes this appeal.
The charge in the indictment is based upon the alleged malicious killing of seven chickens. Appellant requested two special instructions, in writing, to be given the jury, which were refused by the court. There being no statement of facts in the record, we are unable to say that there was any error on the part of the court in refusing to give said instructions to the jury.
There are two affidavits in the record, made by counsel for appellant, in regard to their failure to obtain a statement of the facts proved on the trial, in which it is stated that on the 12th day of January, 1897, they handed to the county attorney, B. M. Terrell, a statement of facts prepared by themselves, as attorneys for the defendant, and that he failed to agree to said statement of facts, and that thereafter, on the same day, they presented the same statement of facts to the county judge, who tried the case, and he did not approve the same, nor did he prepare any statement of his own, and file in the record. Court adjourned on the 2d day of January, 1897; so that it will be seen that said statement of facts was not prepared by counsel until the tenth day after the adjournment, a 10-days order being entered in which to file a statement of facts. There is no reason or excuse given why they delayed the preparation of said statement of facts; nor is there anything stated in the affidavits showing that they could not reach the opposing counsel, or that they had made any attempt whatever to get an agreed statement of facts before said tenth day. This is not sufficient diligence. Counsel should not delay their action in matters of this sort until the last moment, but should use all reasonable diligence. This is absolutely required by the statute. There is no reason shown by these affidavits why this judgment should be reversed because of their failure to obtain said statement of facts. The judgment is therefore affirmed.
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