Porter v. State

• Citation: 160 S.W. 1194
• Parties: PORTER v. STATE.
• Decision Date: 19 November 1913
• Court: Texas Court of Criminal Appeals

160 S.W. 1194

PORTER v. STATE.

Court of Criminal Appeals of Texas.

November 19, 1913.

Appeal from Criminal District Court, Dallas County; Barry Miller and W. L. Crawford, Jr., Judges.

Will Porter was convicted of murder, and appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

On December 31, 1912, the grand jury of Dallas county indicted appellant in criminal district court No. 2 of Dallas county for the murder of Jesse Franklin, alleged to have been committed on December 29, 1912. He was tried at the January term, 1913, and the verdict rendered on January 16th assessed his punishment at death. The term of the court at which he was tried convened on January 6, 1913, and adjourned on April 5, 1913.

The record shows, and we judicially know, that Judge Barry Miller was the judge of that court and that he did not resign as such judge until February 10, 1913. We also judicially know that Judge W. L. Crawford, Jr., was appointed and took the oath of office as the successor of Judge Miller on March 1, 1913. The record further shows that all of appellant's motions for new trial and in arrest of judgment were acted upon by Judge Miller during his term of office, and that the notice of appeal was given on February 1, 1913, by which and at which time the jurisdiction of this court attached. In other words, the record shows that the whole case was tried and everything in connection therewith was had before Judge Miller while he was the judge of that court and before his resignation took effect, and that Judge Crawford had nothing to do with any of these matters. His connection with the case and everything in connection therewith is shown to have begun for the first time on March 3, 1913, when he granted an extension of time to appellant for filing the statement of facts and bills of exceptions, and that his only connection with the case or any proceeding therein were on and after March 3, 1913.

There is filed with the record what purports to be a statement of facts and one bill of exception. The bill of exception was approved by Judge Crawford and not by Judge Miller. It shows to have been signed and approved and ordered filed by Judge Crawford on April 30, 1913, and further shows on its face that it was to the overruling of appellant's motion made, heard, and acted upon by Judge Miller on February 1, 1913, in arrest of judgment, claiming the indictment was insufficient, because a person not authorized by law and not a member of the grand jury, nor an attorney connected with the prosecution in the case, was present while the grand jury was investigating and deliberating on this cause as to whether or not they would find an indictment against appellant. It further shows that Judge Miller and not Judge Crawford heard evidence on said motion at the time he acted thereon and overruled the same.

The purported statement of facts was filed in the lower court on April 26, 1913. It was not approved by Judge Miller but shows to have been approved by Judge Crawford. Under this state of facts, as shown by this record, the Assistant Attorney General makes a motion to strike out the said bill of exception and statement of facts. This question has heretofore carefully been considered by this court in the case of Richardson v. State, 158 S. W. 517, wherein this court, after citing the statutes, held that the judge of the court who tried the case, before whom such proceedings were had, could alone approve bills of exceptions and statements of facts, and that his successor could not do so. We are thoroughly satisfied with the holding and opinion in that case, and in accordance therewith and with the statutes we are under the necessity of sustaining the motion of the Assistant Attorney General, which we do, and therefore strike out the said bill of exception and statement of facts.

Notwithstanding this, as this is a case where the death penalty is...