Murphy v. State, 17931.
| Decision Date | 19 February 1936 |
| Docket Number | No. 17931.,17931. |
| Citation | 91 S.W.2d 738 |
| Parties | MURPHY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Shelby County; T. O. Davis, Judge.
Willis Murphy was convicted of assault with intent to murder, and he appeals.
Affirmed.
W. T. Davis, of San Augustine, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
Assault with intent to murder is the offense; penalty assessed at confinement in the penitentiary for two years.
The prosecution was brought in San Augustine county, but, upon a change of venue, the case was tried in Shelby county. The appellant was convicted, and his penalty was assessed as above stated.
The case is before this court without statement of facts or bills of exception.
On April 27, 1935, the appellant's motion for new trial was overruled and notice of appeal given. On June 3, 1935, appellant presented to the clerk of the district court of Shelby county an affidavit to the effect that he desired to appeal his case to the Court of Criminal Appeals and was "unable to pay the cost of appeal, or any part thereof, or to give security therefor." The judge presiding in the court in which the case was tried placed in the record a statement to the effect that on July 22, 1935, he was called over the telephone by the attorney for the appellant and advised of the filing of the affidavit above mentioned. Upon receiving such telephone communication, the judge immediately directed the court reporter to prepare a narrative statement of facts of the case and deliver same to the appellant. From the statement we quote: "In this connection, I certify that I did not know of the filing of said affidavit until informed thereof by said attorney about 4 o'clock P. M. on this date, from any source whatever, and had not heard of it from any source whatever until said time."
The appeal reached this court on July 26, 1935.
A reversal of the judgment of conviction is sought upon the ground that appellant was deprived of a statement of facts.
It is provided in the statute, article 760, C.C.P., as amended by Acts 1931, c. 11, § 1, and c. 34, § 7 (Vernon's Ann. C.C.P. art. 760), that a statement of facts may be considered when filed within ninety days after notice of appeal is given.
At the time the trial judge was informed of the appellant's desire to have a statement of facts, there were but four days remaining within the time for the filing of the statement of facts. The judge...
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Ex Parte Thorbus
...so as to enable the court reporter to prepare the statement of facts within the 90 days required by law. See also Murphy v. State, 129 Tex.Cr.R. 623, 91 S.W.2d 738. A similar result was reached in Francis v. State, 132 Tex.Cr.R. 591, 106 S.W.2d 279 and Capps v. State, 130 Tex.Cr.R. 166, 93 ......
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Brown v. State
...v. State, 92 Tex.Cr.R. 601, 244 S.W. 1012, and cases there cited; Gonzales v. State, 76 Tex.Cr.R. 493, 175 S.W. 706; Murphy v. State, 129 Tex.Cr.R. 623, 91 S.W.2d 738; 4 Tex.Jur. p. We quote from Murphy v. State, supra: "On the subject in question the courts have declared that the burden is......
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Freeman v. State, 19653.
...days required by law. Among the precedents on the subject are Fuller v. State, 110 Tex.Cr.R. 631, 10 S.W. 2d 556; Murphy v. State, 129 Tex.Cr.R. 623, 91 S.W.2d 738; Capps v. State, 130 Tex.Cr.R. 166, 93 S.W.2d 407; Francis State, 132 Tex.Cr.R. 591, 106 S.W.2d 279. See, also, 4 Tex.Jur., p. ......
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Hilliard v. State, 38240
...upon the filing of a pauper's oath, it was incumbent upon him to exercise due diligence to procure the same. Murphy v. State, 129 Tex.Cr.R. 623, 91 S.W.2d 738. The delay of nearly eight months in filing the pauper's oath after giving notice of appeal does not reflect the exercise of diligen......