Mathason v. State
| Decision Date | 06 April 1921 |
| Docket Number | (No. 6069.) |
| Citation | 229 S.W. 548 |
| Parties | MATHASON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Erath County; J. B. Keith, Judge.
Earl Mathason was convicted of theft, and he appeals. Reversed and remanded.
Chandler & Pannil, of Stephenville, and Simpson & Moore. W. E. Myres, and W. B. Ammerman, all of Fort Worth, for appellant.
Alvin M. Owsley, Asst. Atty. Gen., for the State.
The decision of this case has been delayed by the failure of the clerk of the trial court to make out and forward to this court a correct transcript. The record now before us shows that at the time of the overruling of appellant's motion for a new trial the trial court made an order granting 90 days' extension of time for the filing of the statement of facts and bills of exception. As said order was extended into the minutes by the clerk of the trial court, it appeared to be an order granting 90 days in which to file said records. When the transcript was filed in this court it nowhere showed any extension of the time for filing bills of exception, and said fact caused the Assistant Attorney General in this court to file a motion to strike out appellant's bills of exception on the ground that same were filed too late; in answer to which appellant filed his motion for certiorari to perfect the record, and this court was compelled to grant said writ in order to have inserted in the transcript a correct copy of the order of the trial court granting said extension of time. This court has not been very strict with errors in making up records for the presentation of appeals here, but such errors occur so frequently that we will be compelled to make some very stringent rules regarding same if more care is not exercised. The transcript also shows that the date of the filing of the bills of exception in the court below has been changed with pen and ink from October 9th to October 7th, after said transcript was prepared for this court. An affidavit and letter of the clerk of the district court were forwarded to the Assistant Attorney General attempting to set up that he had been induced to make an erroneous file mark upon said bills of exception, and was attempting to correct same by said pen and ink change. We do not understand how a matter of this kind could occur if the file mark was put upon said bills of exception at the time they were originally presented to the clerk. We cannot permit changes in records after same are filed in this court upon ex parte affidavits, except in compliance with some law. We are at a loss to understand any necessity for such change, since said bills of exception, whether filed October 9th or October 7th, would appear to be well within the 90 days' time granted by the trial court, and the motion of the Assistant Attorney General in view of the present condition of the record will be overruled.
Appellant was convicted of theft of certain diamonds and his punishment fixed at 5 years in the penitentiary.
When the case was called for trial appellant asked for a continuance to obtain the testimony of Bert Nicholson, Fred Williams, and Mrs. Basil Matthewson. The application for continuance appears in this record under the head of "Plea of Defendant," and shows to have been made on June 15, 1920. The matter is complained of in appellant's bill of exceptions No. 1, which shows that the trial term of the court below began on May 31, and that the indictment was returned against appellant on June 9, 1920, he being then confined in jail. Said application further states that on June 12th, and as soon as his case was set for trial appellant made proper application for subpœnas for said witnesses, all of whom resided out of the county of the trial. The transcript is in such condition as to make it difficult for us to ascertain just the order of the events involved in the trial. The judgment of guilty shown on page 8 thereof makes it appear that the cause was called for trial on June 11th, and that the verdict of guilty was rendered on that day, and, if this were true, appellant's application was properly denied, because he made no application for subpœnas until the 12th. However, we conclude from a careful examination of other documents besides the judgment that the date of said judgment is erroneous.
The time allowed appellant in which to obtain out of county witnesses was not very great, and we believe sufficient diligence was shown. The subpœnas were issued on the 12th and made returnable on the 14th, and it appears from the returns of the officers on the process that none of said witnesses were served prior to the trial, and none of them appeared and testified. Appellant made a motion...
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Wiley v. State
...trial court by the affidavit of the absent witness attached to the motion for new trial. Many authorities are cited in Mathason v. State, 89 Tex. Cr. R. 136, 229 S. W. 548, and White v. State, 90 Tex. Cr. R. 584, 236 S. W. 745, which seem to support this conclusion. It is also insisted that......
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White v. State
...146 S. W. 1190; Rhea v. State, 67 Tex. Cr. R. 198, 148 S. W. 578; Valigura v. State, 68 Tex. Cr. R. 12, 150 S. W. 778; Mathason v. State, 89 Tex. Cr. R. 136, 229 S. W. 548. This, however, should not be understood to necessitate a new trial unless the materiality of such absent testimony be ......
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Henderson v. State
...property as a pin was no variance from proof that it was a diamond stud — a stud solitaire with a screw or spiral. In Mathason v. State, 89 Tex. Cr. R. 136, 229 S. W. 548, we held proof of theft of diamond rings not a variance from an allegation of theft of diamonds. As far as our informati......
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Yowell v. State, 16387.
...W. 797; Wilson v. State, 80 Tex. Cr. R. 442, 190 S. W. 155; White et al. v. State, 90 Tex. Cr. R. 584, 236 S. W. 745; Mathason v. State, 89 Tex. Cr. R. 136, 229 S. W. 548. By bill of exception No. 6 appellant complains of the action of the trial court in permitting the witness R. C. Chancey......