Stanford v. State

• Decision Date: 12 December 1900
• Citation: 60 S.W. 253
• Parties: STANFORD v. STATE.
• Court: Texas Court of Criminal Appeals

60 S.W. 253

STANFORD v. STATE.

Court of Criminal Appeals of Texas.

December 12, 1900.

Appeal from district court, Stephens county; N. R. Lindsey, Judge.

L. J. Stanford was convicted of incest, and he appeals. Affirmed.

W. P. Sebastian, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of incest. The statement of facts was filed July 3d, court having previously adjourned June 2d. The excuse for failing to file said statement within the 10 days allowed for that purpose is found in the affidavit made by the district attorney to the effect that the statement of facts was handed him some days after the adjournment of the term at which the conviction occurred; that district court was then in session in another county; that he was very busily engaged with the grand jury; and that at intervals he reviewed said statement of facts, and, being unable to agree, he made up and presented to the judge his version of the evidence. He states further that he is not quite sure as to the time appellant's counsel handed him the statement of facts, but believes it was before the expiration of the 10 days after adjournment of the term at which conviction occurred. There is no statement from appellant's counsel. In fact, this is the only showing made. There was no diligence. The statute authorizing the filing of statement of facts subsequent to adjournment of the term was reviewed in George v. State, 25 Tex. App. 229, 8 S. W. 25, and under the construction there placed upon the statute this showing is clearly insufficient. George's Case has been followed by this court in an unbroken line of decisions. The same construction has been placed upon this statute by our courts of civil appeal.

We are of opinion that the bills of exception should be considered. The affidavit of the trial judge discloses that within two days after the conviction, and during that term of court, appellant presented his bills of exception; that he (the judge) was so sick at the time that the physician interdicted his reading. This sickness continued until after the adjournment of the court. This arose from no want of care or caution on the part of appellant or his counsel, and by reason of the sickness it was placed beyond the power of the judge to act upon them sooner. The statute requires that bills of exception shall be presented to the district judge within 10 days after the trial, and before adjournment of the court; and it has been held that, unless this has been done, they will not be considered. Yet some of the decisions intimate there might be exceptions to this rule upon a proper showing. Where bills have been presented within the time required by statute, and are not filed by the judge, they have not been considered, for the reason that it was the duty of the party presenting the bills to follow them up, and see they are approved and filed within proper time. Riojas v. State (Tex. Cr. App.) 36 S. W. 268, and authorities there cited. If the negligence in this case could be laid at the door of appellant or his counsel, the rule laid down in Riojas' Case would govern. In other words, if, when the bills were presented to the trial judge, he was not prevented by some uncontrollable circumstance from approving the bills, it would have been incumbent upon the attorneys or party presenting same to see they were either approved or refused,—if approved, filed; if refused, to follow the statutory provisions, which authorize the preparation of bills in another way. But here no amount of diligence would have procured the signature of the judge or the filing of the bills. It was beyond the power of the judge to conform to the law, and no amount of diligence on the part of appellant could have overcome this condition of things. We believe, therefore, that the bills should be considered; and further hold that it is not an infringement of the rule laid down in George v. State, 25 Tex. App. 229, 8 S. W. 25, and Riojas' Case, supra.

Bills Nos. 1 and 3 may be considered together. While the alleged incestuous paramour, Viola Huckaby, was on the...