Serop v. State

• Decision Date: 26 February 1913
• Citation: 154 S.W. 557
• Parties: SEROP v. STATE.
• Court: Texas Court of Criminal Appeals

154 S.W. 557

SEROP v. STATE.

Court of Criminal Appeals of Texas.

February 26, 1913.

Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

Charles Serop was convicted of robbery, and he appeals. Affirmed.

Wilson & Williamson, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of robbery, and his punishment assessed at five years' confinement in the penitentiary.

There is a motion made to strike out the statement of facts because not signed by appellant's counsel, although signed by the county attorney and approved by the district judge. There are some decisions so holding; but is this a correct construction of the provisions of our statute? Article 824 of the Code of Criminal Procedure 1895 provides that, if a case is appealed, a statement of facts may be drawn up and certified and placed in the record as in civil cases. Our Civil Code, art. 1379 (Rev. St. 1895), provides that, if the parties agree upon a statement of facts, they shall sign the same, and it then shall be submitted to the judge, who shall, if he finds it correct, approve and sign it, and the same shall be filed with the clerk; and the next succeeding article (1380) provides if the parties do not agree upon a statement of facts, or if the judge refuses to approve one that is agreed to, the parties may submit their respective statements to the judge, who shall from his own knowledge make out and sign and file with the clerk a correct statement of facts proven on the trial, and such statement shall constitute a part of the record. In the case of Kelso v. Townsend, 13 Tex. 140, Judge Lipscomb held: "Where there was a statement of facts which was signed by the attorney for appellant only, and the judge certifies that he `signed the foregoing as a statement of all the material facts proved upon the trial of the cause,' etc., it is held that the presumption is that the attorneys failed to agree on a statement of facts, and the judge made out the statement of facts under the authority given him to do so." The opinion further states: "But it is said that the judge has not in this case made out his own statement of the facts, but has certified to the correctness of the statement of one of the parties. If he was satisfied that the statement presented to him by the only party who chose to comply with the law was correct, that it corresponded with his own recollection of the evidence, his adoption of that statement was certainly a compliance with the spirit of the statute, the main object of which was to secure a correct statement of the facts to become a part of the record." This rule was adhered to in Darcy v. Turner, 46 Tex. 30, McManus v. Wallis, 52 Tex. 544; and in the case of Harlan v. Haynie, 9 Tex. 462, it is said: "In this case the statement of facts sent up does not affirmatively show that a disagreement took place between the respective counsel; but, as the judge's name is alone signed to it, the presumption is irresistible that they did." Other cases so holding by our Supreme Court could be cited; and, as the Code of Criminal Procedure provides that rule prescribed in civil cases shall govern, why should this court give to these articles of the civil statutes a construction different to that given by our Supreme Court to those articles? We think the rule announced by Judge Lipscomb in the Kelso v. Townsend Case, supra, is the correct construction to give to those articles of the civil procedure, and the cases holding otherwise are overruled. The object and purpose of the law is to have presented to this court a correct statement of the facts, which must be verified by the signature of the judge trying the case; and when the statement of facts is thus verified, in the absence of any question being raised as to its correctness, it should be considered by this court. This court, we frankly confess, has some decisions...