Polk v. State, 24310.

• Decision Date: 23 March 1949
• Docket Number: No. 24310.,24310.
• Citation: 218 S.W.2d 1001
• Parties: POLK v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1001

218 S.W.2d 1001

POLK v. STATE.

No. 24310.

Court of Criminal Appeals of Texas.

March 23, 1949.

Appeal from Gregg County Court; Earl Sharp, Judge.

Leon Polk was convicted of operating a motor vehicle upon a public road while under the influence of intoxicating liquor, and he appeals.

Judgment affirmed.

No appearance for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

It was charged by complaint and information that appellant, while under the influence of intoxicating liquor, drove and operated a motor vehicle upon a public road in Gregg County, Texas. Upon a trial before a jury appellant was convicted and fined $50 and given 60 days in jail.

The statement of facts is copied in the transcript Our State's Attorney points out that it may not be considered.

Prior to the Act of the Legislature in 1931, the statute, art. 760, subdivision 2, read as follows: "The statement of facts in felony cases shall not be copied in the transcript of the clerk, but * * * shall be filed in duplicate with the clerk, and the original sent up as a part of the record in the cause on appeal * * *. On an appeal from a conviction of misdemeanor, the statement of facts shall be copied in the transcript." (Italics ours.)

It was the holding of the court under the statute that if the statement of facts in a felony case was copied in the transcript, it would be disregarded, or stricken out on motion. See 4 Tex.Jur. p. 463, sec. 322, and cases cited; Powell, alias Powers v. State, 88 Tex.Cr.R. 655, 228 S.W. 1096, and supporting cases listed. It was held under the said statute that in a misdemeanor case the statement of facts must be copied in the transcript, and if the original was sent up it would not be considered. See 4 Tex. Jur. supra; Lynch v. State, 81 Tex.Cr.R. 64, 193 S.W. 667; Evans v. State, 84 Tex. Cr.R. 577, 209 S.W. 147; Brogdon v. State, 63 Tex.Cr.R. 475, 140 S.W. 352.

In 1931, Acts of 42nd Legislature, p. 12, Art. 760, C.C.P., was amended, Vernon's Ann.C.C.P. art. 760, and now reads: "The Statement of Facts in felony or misdemeanor cases shall not be copied in The Transcript of the Clerk, but * * * shall be filed in duplicate with the Clerk, and the original sent up as a part of the record of the cause on appeal * * *." (Italics ours.)

It will be noted that the provisions of the amended act, as it relates to misdemeanor cases, is precisely contra to Article 760, as it was before the amendment. It follows that the statement of facts as here found in the transcript may not be considered. See Crutchfield v. State, 148 Tex.Cr.R. 399, 187 S.W.2d 911.

The only question which may be reviewed is presented...