Roberts v. State

• Decision Date: 03 June 1914
• Docket Number: (No. 3090.)
• Citation: 168 S.W. 98
• Parties: ROBERTS v. STATE.
• Court: Texas Court of Criminal Appeals

168 S.W. 98

ROBERTS v. STATE.

(No. 3090.)

Court of Criminal Appeals of Texas.

June 3, 1914.

Rehearing Denied June 26, 1914.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Jim Roberts was convicted of murder, and he appeals. Affirmed.

Walter Collins and Shurtleff & Cummings, all of Hillsboro, and Williams & Williams, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

This is the second appeal in this case, the opinion on the former appeal being reported in 156 S. W. 65. On this trial appellant was again convicted of murder, and his punishment assessed at 25 years' confinement in the state penitentiary.

Neither the bills of exception nor the statement of facts were filed until after the time allowed by law for such papers to be filed. The verdict in this case was rendered on October 6th. The motion for new trial was overruled on October 24th, while neither the bills of exception nor the statement of facts were filed in the trial court until February 9th; the time having elapsed when they could be legally filed on January 22d, even if we do not consider the irregularity in obtaining the orders for extension of time. The stenographer files an affidavit that the reason for the delay in the preparation of the statement of facts was occasioned by the sickness of his wife, and this would, perhaps, have formed ample justification for us to consider same if section 13 of the stenographer's act had not provided for the parties to make out a statement of facts independent of the stenographer's notes, as was formerly done. When the time was about to elapse, it was their duty to mandamus the stenographer, or if they did not desire to take that step, then the attorneys should themselves have made out and submitted a statement of facts under the provisions of section 13 of the act.

However, whatever may be said as to the statement of facts, certainly the record before us furnishes no sufficient excuse or reason why the bills of exception were not filed within the time allowed by law. To secure the approval of the judge to bills of exception, and to see that they are filed in time, is made the imperative duty of appellant and his counsel. Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268. The questions here involved were specifically passed on by the Court of Civil Appeals in Smith v. P. V. & N. E. Ry. Co., 43 Tex. Civ. App. 204, 95 S. W. 11, which ruling has always been adhered to in the civil courts, and approved by this court in the case of Peddy v. State, 63 Tex. Cr. R. 483, ...