Seliger v. State

• Decision Date: 03 April 1940
• Docket Number: No. 20973.,20973.
• Citation: 138 S.W.2d 817
• Parties: SELIGER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 817

138 S.W.2d 817

SELIGER v. STATE.

No. 20973.

Court of Criminal Appeals of Texas.

April 3, 1940.

Commissioners' Decision.

Appeal from District Court, Hutchinson County; Jack Allen, Judge.

Frank Seliger was convicted of receiving and concealing stolen property, and he appeals.

Reversed and cause remanded.

E. T. Miller and Simpson, Dorenfield & Fullingim, all of Amarillo, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is receiving and concealing stolen property; the punishment, confinement in the penitentiary for four years.

No statement of facts is brought forward. A certificate of the trial judge, in approving appellant's bill of exception No. 2, conclusively shows that the failure to secure a statement of facts can not be charged to appellant. It is shown in the bill of exception that after appellant had been convicted he promptly made satisfactory arrangements with the court reporter for a statement of facts. Thereafter the court reporter was accidentally killed. He had not prepared a statement of facts in the case, and it is certified in the bill of exception that no other person was able to prepare such statement from the notes that he had taken during the trial. Neither the district attorney nor appellant's counsel would undertake to prepare a statement of facts from memory. The trial judge certifies that he did not keep any notes during the trial and could not and would not attempt to make up a statement of facts in the case. We quote in part from the court's certificate, as follows: "The court certifies that without any fault or negligence on the part of the defendant and his counsel, but due solely to the untimely and accidental death of J. Henry Cross, the official court reporter, the defendant and his counsel have been deprived of the statement of facts necessary to perfect their appeal, and have been deprived of data from which they could prepare bills of exception preserved by the defendant during his trial."

It is apparent that appellant has been unable to obtain a statement of facts after using due diligence and that there has been no fault or negligence either on his part or on the part of his counsel. It follows that we are constrained to order a reversal of the judgment. See Brannan v. State, 137 Tex.Cr.R. 611, 132 S.W. 2d 594, and Little v. State, 131 Tex.Cr.R. 164, 97 S.W.2d 479.

The judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing...